MEDIÆVAL AND MODERN PENOLOGY

A striking and significant indication of the remarkable change that has come over the spirit of legislation, and more especially of criminal jurisprudence, in comparatively recent times, is the fact that whereas, a few generations ago, lawgivers and courts of justice still continued to treat brutes as men responsible for their misdeeds, and to punish them capitally as malefactors, the tendency now-a-days is to regard men as brutes, acting automatically or under an insane and irresistible impulse to evil, and to plead this innate and constitutional proclivity, in prosecution for murder, as an extenuating or even wholly exculpating circumstance. Some persons even maintain, as we have already seen, that such criminals are diabolically possessed and thus account for their inveterate and otherwise incredible perversity on the theory held by the highest authorities in the Middle Ages concerning the nature of noxious animals.

MediÆval jurists and judges did not stop to solve intricate problems of psycho-pathology nor to sift the expert evidence of the psychiater. The legal maxim: Si duo faciunt idem non est idem (if two do the same thing, it is not the same) was too fine a distinction for them, even when one of the doers was a brute beast. The puzzling knots, which we seek painfully to untie and often succeed only in hopelessly tangling, they boldly cut with executioner’s sword. They dealt directly with overt acts and administered justice with a rude and retaliative hand, more accustomed and better adapted to clinch a fist and strike a blow than to weigh motives nicely in a balance, to measure gradations of culpability, or to detect delicate differences in the psychical texture and spiritual qualities of deeds. They put implicit faith in Jack Cade’s prescription of “hempen caudle” and “pap of hatchet” as radical remedies for all forms and degrees of criminal alienation and murderous aberration of mind. Phlebotomy was the catholicon of the physician and the craze of the jurist; blood-letting was regarded as the only infallible cure for all the ills that afflict the human and the social body. Doctors of physic and doctors of law vied with each other in applying this panacea. The red-streaked pole of the barber-surgeon and the reeking scaffold, symbols of venesection as a means of promoting the physical and moral health of the community, were the appropriate signs of medicine and jurisprudence. Hygeia and Justicia, instead of being represented by graceful females feeding the emblematic serpent of recuperation or holding with firm and even hand the well-poised scales of equity, would have been more fitly typified by two enormous leeches gorged with blood.

Even the dead, who should have been hanged, but escaped their due punishment, could not rest in their graves until the corpse had suffered the proper legal penalty at the hands of the public executioner. Their restless ghosts wandered about as vampires or other malicious spooks until their crimes had been expiated by digging up their bodies and suspending them from the gallows. Culprits, who died on the rack or in prison, were brought to the scaffold as though they were still alive. In 1685, a were-wolf, supposed to be the incarnation of a deceased burgomaster of Ansbach, did much harm in the neighbourhood of that city, preying upon the herds and even devouring women and children. With great difficulty the ravenous beast was finally killed; its carcass was then clad in a tight suit of flesh-coloured cere-cloth, resembling in tint the human skin, and adorned with a chestnut brown wig and a long whitish beard; the snout of the beast was cut off and a mask of the burgomaster’s features substituted for it, and the counterfeit presentment thus produced was hanged by order of the court. The pelt of the strangely transmogrified wolf was stuffed and preserved in the margrave’s cabinet of curiosities as a memorial of the marvellous event and as ocular proof of the existence of were-wolves.

In Hungary and the Slavic countries of Eastern Europe the public execution of vampires was formerly of frequent occurrence, and the superstition, which gave rise to such proceedings, still prevails among the rural population of those semi-civilized lands. In 1337, a herdsman near the town of Cadan came forth from his grave every night, visiting the villages, terrifying the inhabitants, conversing affably with some and murdering others. Every person, with whom he associated, was doomed to die within eight days and to wander as a vampire after death. In order to keep him in his grave a stake was driven through his body, but he only laughed at this clumsy attempt to impale a ghost, saying: “You have really rendered me a great service by providing me with a staff, with which to ward off the dogs when I go out to walk.” At length it was decided to give him over to two public executioners to be burned. We are informed that when the fire began to take effect, “he drew up his feet, bellowed for a while like a bull and hee-hawed like an ass, until one of the executioners stabbed him in the side, so that the blood oozed out and the evil finally ceased.”

Again in 1345, in the town of Lewin, a potter’s wife, who was reputed to be a witch, died and, owing to suspicions of her pact with Satan, was refused burial in consecrated ground and dumped into a ditch like a dog. The event proved that she was not a good Christian, for instead of remaining quietly in her grave, such as it was, she roamed about in the form of divers unclean beasts, causing much terror and slaying sundry persons. Thereupon she was exhumed and it was found that she had chewed and swallowed one half of her face-cloth, which, on being pulled out of her throat, showed stains of blood. A stake was driven through her breast, but this precautionary measure only made matters worse. She now walked abroad with the stake in her hand and killed quite a number of people with this formidable weapon. She was then taken up a second time and burned, whereupon she ceased from troubling. The efficacy of this post-mortem auto da fÉ was accepted as conclusive proof that her neighbours had neglected to perform their whole religious duty in not having burned her when she was alive, and were thus punished for their remissness.

DÖpler cites also the case of Stephen HÜbner of Trautenau, who wandered about after death as a vampire, frightening and strangling several individuals. By order of the court his body was disinterred and decapitated under the gallows-tree. When his head was struck off, a stream of blood spurted forth, although he had been already five months buried. His remains were reduced to ashes and nothing more was heard of him.

In 1573, the parliament of DÔle published a decree permitting the inhabitants of the Franche ComtÉ to pursue and kill a were-wolf or loup-garou, which infested that province; “notwithstanding the existing laws concerning the chase,” the people were empowered to “assemble with javelins, halberds, pikes, arquebuses and clubs to hunt and pursue the said were-wolf in all places, where they could find it, and to take, bind and kill it, without incurring any fine or other penalty.” The hunt seems to have been successful, if we may judge from the fact that the same tribunal in the following year (1574) condemned to be burned a man named Gilles Garnier, who ran on all fours in the forest and fields and devoured little children “even on Friday.” The poor lycanthrope, it appears, had as slight respect for ecclesiastical fasts as the French pig already mentioned, which was not restrained by any feeling of piety from eating infants on a jour maigre.

Henry VIII. of England summoned Thomas À Becket to appear before the Star Chamber to answer for his crimes and then had him condemned as a traitor, and his bones, that had been nearly four centuries in the tomb and worshipped as holy relics by countless pilgrims, burned and scattered to the winds.

When Stephen VI. succeeded to the tiara in 896, one of his first acts was to cause the body of his predecessor, Formosus, to be exhumed and brought to trial on the charge of having unlawfully and sacrilegiously usurped the papal dignity. A writ of summons was issued in due form and the corpse of the octogenarian pope, which had lain already eight months in the grave, was dug up, re-arrayed in full pontificals and seated on a throne in the council-hall of St. Peter’s, where a synod had been convened to adjudicate upon the case. No legal formality was omitted in this strange procedure and a deacon was appointed to defend the accused, although the synodical jury was known to be packed and the verdict predetermined. Formosus was found guilty and condemned to deposition. No sooner was the sentence pronounced than the executioners thrust him from the throne, stripped him of his pontifical robes and other ensigns of office, cut off the three benedictory fingers of his right hand, dragged him by the feet out of the judgment-hall and threw his body “as a pestilential thing” (uti quoddam mephiticum) into the Tiber. Not until several months later, after Stephen himself had been strangled in prison, were the mutilated and putrefied remains of Formosus taken out of the water and restored to the tomb. The Athenian Prytaneum, as we have already seen, was guilty of the childishness of prosecuting inanimate objects, but it never violated the sepulchre for the purpose of inflicting post-humous punishment on corpses. The perpetration of this brutality was reserved for the Papal See.From the standpoint of ancient and mediÆval jurisprudents the overt act alone was assumed to constitute the crime; the mental condition of the criminal was never or at least very seldom taken into consideration. It is remarkable how long this crude and superficial conception of justice prevailed, and how very recently even the first attempts have been made to establish penal codes on a philosophic basis. The punishableness of an offence is now generally recognized as depending solely upon the sanity and rationality of the offender. Crime, morally and legally considered, presupposes, not perfect, for such a thing does not exist, but normal freedom of the will on the part of the agent. Where this element is wanting, there is no culpability, whatever may have been the consequences of the act. Modern criminal law looks primarily to the psychical origin of the deed, and only secondarily to its physical effects; mediÆval criminal law ignored the origin altogether, and regarded exclusively the effects, which it dealt with on the homoeopenal principle of similia similibus puniantur, for the most part blindly and brutally applied.

Mancini, Lombroso, Garofalo, Albrecht, Benedikt, BÜchner, Moleschott, Despine, FouillÉe, Letourneau, Maudsley, Bruce Thompson, Nicholson, Minzloff, Notovich and other European criminal lawyers, physiologists and anthropologists have devoted themselves with peculiar zeal and rare acuteness to the study and solution of obscure and perplexing problems of psycho-pathological jurisprudence, and have drawn nice and often overnice distinctions in determining degrees of personal responsibility. Judicial procedure no longer stops with testimony establishing the bald facts in the case, but admits also the evidence of the expert alienist in order to ascertain to what extent the will of the accused was free or functionally normal in its operation. Here it is not a question of raving madness or of drivelling idiocy, perceptible to the coarsest understanding and the crassest ignorance; but the slightest morbid disturbance, impairing the full and healthy exercise of the mental faculties, must be examined and estimated. If “privation of mind” and “irresistible force,” says Zupetta, are exculpatory, then “partial vitiation of mind” and “semi-irresistible force” are entitled to the same or at least to proportional consideration. There are states of being which are mutually contradictory and exclusive and cannot co-exist, such as life and death. A partial state of life or death is impossible; such expressions as half-alive and half-dead are hyperbolical figures of speech used for purely rhetorical purposes; taken literally, they are simply absurd. It is not so, however, with states of mind. The intellect, whose soundness is the first condition of accountability, may be perfectly clear, manifesting itself in all its fulness and power, or it may be partially obscured. So, too, the will, whose self-determination is the second condition of accountability, may assert itself with complete freedom and untrammelled force, or it may act under stress and with imperfect volition. Moral coercion, whether arising from external influences, abnormities of the physical organism or defects of the mental constitution, is not less real because it is not easy to detect and may not be wholly irresistible. For this reason, it involves no contradiction in terms and is not absurd to call an action half-conscious, half-voluntary, or half-constrained. “Partial vitiation of mind” is a state distinctly recognized in psychiatrical science. In like manner, there is no essential incongruity in affirming that an impulse may be the result of a “semi-irresistible force.” But these mental conditions and forces do not manifest themselves with equal obviousness and intensity in all cases; sometimes they are scarcely appreciable; again they verge upon “absolute privation of mind” and “wholly irresistible force;” and it is the duty of the judge to adjust the penalty to the gradations of guilt as determined by the greater or less freedom of the agent.

The same process of reasoning would lead to the admission of quasi-vitiations of mind and quasi-irresistible forces as grounds of exculpation. Thus one might go on analyzing and refining away human responsibility, and reducing all crime to resultants of mental derangement, until every malefactor would come to be looked upon, not as a culprit to be delivered over to the sharp stroke of the headsman or the safe custody of the jailer, but as an unfortunate victim of morbid states and uncontrollable impulses, to be consigned to the sympathetic care of the psychiater.

Italian anthropologists and jurisprudents have been foremost and gone farthest, both theoretically and practically, in this reaction from mediÆval conceptions of crime and its proper punishment. This violent recoil from extreme cruelty to excessive commiseration is due, in a great measure, to the Italian temperament, to a peculiar gentleness and impressionableness of character, which, combined with an instinctive aversion to whatever shocks the senses and mars the pleasure of the moment, are apt to degenerate into shallow sentimentality and sickly sensibility, thereby enfeebling and perverting the moral sense and distorting all ideas of right and justice. To minds thus constituted the cool and deliberate condemnation of a human being to the gallows is an atrocity, in comparison with which a fatal stab in the heat of passion or under strong provocation seems a light and venial transgression. This maudlin sympathy with the guilty living man, who is in danger of suffering for his crime, to the entire forgetfulness of the innocent dead man, the victim of his anger or cupidity, pervades all classes of society, and has stimulated the ingenuity of lawyers and legislators to discover mitigating moments and extenuating circumstances and other means of loosening and enlarging the intricate meshes of the penal code so as to permit the culprit to escape. To this end they eagerly seized upon the doctrine of evolution and endeavoured to seek the origin of crime in hereditary propensities, atavistic recurrences, physical degeneracies and other organic fatalities, for which no one can be held personally responsible, and constructed upon the basis of the most recent scientific researches a penological system giving free scope and full gratification to this pitying and palliating disposition.

But, although the Italians have been pioneers in this movement, it has not been confined to them; it extends to all civilized nations, and expresses a general tendency of the age. Even the Germans, those leaders in theory and laggards in practice, whose studies and speculations have illustrated all forms and phases of judicial procedure, but who adhere so conservatively to ancient methods and resist so stubbornly the tides of reform in their own courts have yielded on this point. They no longer regard insanity and idiocy as the only grounds of exemption from punishment, but include in the same category “all morbid disturbances of mental activity,” and “all states of mind in which the free determination of the will is not indeed wholly destroyed, but only partially impaired.” In order to realize the radical changes that have taken place in this direction within a relatively recent period, it will suffice merely to compare the present criminal code of the German Empire with the Austrian code of 1803, the Bavarian code of 1813, and the Prussian code of 1851. It must be remembered, too, that these changes have been effected under the drift of public opinion in spite of the political preponderance of Prussia and her strong bureaucratic influence, which has always been exerted in favour of severe penalties, and shown slight consideration for individual frailties and criminal idiosyncrasies in inflicting punishment. As the stronghold of a stolid and supercilious squirearchy (Junkerthum) in Germany, Prussia has stubbornly resisted to the last every reformatory movement in civil and social, and especially in criminal legislation.

A recent decision of the supreme court of the German Empire (pronounced in the summer of 1894) seems to put a check upon this tendency by rejecting the plea of “moral insanity” in the extenuation of crime. As a matter of fact, however, the question whether such a state of mind as “moral insanity” exists or can exist has not yet been settled; and so long as psychiaters do not agree as to the actuality or possibility of this anomalous mental condition, courts of justice may very properly refuse to take it into consideration or to allow it to exert the slightest influence upon their judgment in the infliction of judicial punishment. Moral insanity, as usually defined, involves a disturbance of the moral perceptions and a derangement of the emotional nature, without impairing the distinctively intellectual faculties. The supposed victim of this hypothetical form of madness is capable of thinking logically and often shows remarkable astuteness in forming his plans and executing his criminal purposes, but seems utterly destitute of the moral sense and of all the finer feelings of humanity, performing the most atrocious deeds without hesitation and remembering them without the slightest compunction. In moral stolidity and the lack of susceptibility he is on a level with the lowest savage. German psychiaters, on the whole, are inclined to regard such persons, not as morally insane, but as morally degenerate and depraved; and German jurists and judges are not disposed to admit such vitiation of character as an extenuating circumstance, especially at a time when criminals of this class are on the increase and are banded together to overthrow civilized society and to introduce an era of anarchy and barbarism. The decision of the German judicatory is therefore not reactionary, but merely precautionary, and simply indicates a wise determination to keep the administration of criminal law unencumbered by theories, which science has not yet fully established and which at present can only serve to paralyze the arm of retributive justice.

MediÆval penal justice sought to inflict the greatest possible amount of suffering on the offender and showed a diabolical fertility of invention in devising new methods of torture even for the pettiest trespasses. The monuments of this barbarity may now be seen in European museums in the form of racks, thumbkins, interlarded hares, Pomeranian bonnets, Spanish boots, scavenger’s daughters, iron virgins and similar engines of cruelty. Until quite recently an iron virgin, with its interior full of long and sharp spikes, was exhibited in a subterranean passage at Nuremberg, on the very spot where it is supposed to have once performed its horrible functions; and in Munich this inhuman instrument of punishment was in actual use as late as the beginning of the nineteenth century. The criminal code of Maria Theresa, published in 1769, contained forty-five large copperplate engravings, illustrating the various modes of torture prescribed in the text for the purpose of extorting confession and evidently designed to serve as object lessons for the instruction of the tormentor and the intimidation of the accused. That Prussia was the first country in Germany to abolish judicial torture was due, not to the progressive spirit of the nation or of its tribunals, but solely to the superior enlightenment and energy of Frederic the Great, who effected this reform arbitrarily and against the will of jurists and judges by cabinet-orders issued in 1740 and 1745. Crimes which women are under peculiar temptation to commit, were punished with extraordinary severity. Thus the infanticide was buried alive, a small tube communicating with the outer air being placed in her mouth in order to prolong her life and her agony. A case of this kind is recorded in the proceedings of the “Malefiz-Gericht” or criminal court of Ensisheim in Alsatia under the date of February 3, 1570. In 1401, an apprentice, who stole from his master five pfennigs (then as now the smallest coin of Germany and worth about the fifth of a cent), was condemned to have both his ears cut off. Incredible barbarities of this kind were practised by some of the best and noblest men of that age. Thus Cardinal Carlo Borromeo, who was pre-eminent among his contemporaries for the purity of his life and the benevolence of his character, did not hesitate to condemn Fra Tommaso di Mileto, a Franciscan monk, to be walled up alive, because he entertained heretical notions concerning the sinfulness of eating meat on Friday, and expressed doubts touching the worship of images, indulgences, the supreme and infallible authority of the pope, and the real presence in the eucharist. This cruel sentence, a striking illustration of the words of Lucretius,

“Tantum religio potuit suadere malorum,”

was pronounced December 16, 1564, as follows: “I condemn you to be walled up in a place enclosed by four walls, where, with anguish of heart and abundance of tears, you shall bewail your sins and grievous offences committed against the majesty of God, and the holy mother Church and the religion of St. Francis, the founder of your order.” A bishop, who should impose such a punishment now-a-days, would be very properly declared insane and divested of his office.

Much ridicule has been cast upon the so-called “Blue Laws” of Connecticut on account of the narrowness and pettiness of their prevailing spirit. From our present point of view they are absurd and in many respects atrocious, but compared with the penal codes of that time they mark a great advance in human legislation. They reduced the number of crimes, then punishable in England by death, from two hundred and twenty-three to fourteen. In the mother-country, as late as the seventeenth century, counterfeiters and issuers of false coin were condemned to be boiled to death in oil by slow degrees. The culprit was suspended over the cauldron and gradually let down into it, first boiling the feet, then the legs and so on, until all the flesh was separated from the bones and the body reduced to a skeleton. The Puritans of New England, relentless as they were in their dealings with sectaries, were never so ruthless as this; nor is it probable that they would have inflicted capital punishment upon their own “stubborn and rebellious sons,” or upon persons who “worship any other God but the Lord God,” had it not been for precedents recorded in laws enacted by a semi-civilized people thousands of years ago and supposed to have been dictated by divine wisdom. They failed to perceive the incongruity of attempting to rear a democratic commonwealth on theocratic foundations and made the fatal mistake of planning their structure after what they regarded as the perfect model of the Jewish Zion.

If we compare these barbarities with the law recently enacted by the legislature of the state of New York, whereby capital punishment is to be inflicted as quickly and painlessly as possible by means of electricity, we shall be able to appreciate the immense difference between the mediÆval and the modern spirit in the conception and execution of penal justice.

A point of practical importance, which the criminal anthropologist has to consider is the relation of moral to penal responsibility. If there is no freedom of the will and the commission of crime is the necessary result of physiological idiosyncrasies, hereditary predispositions, brachycephalous, dolichocephalous or microcephalous peculiarities, anomalies of cerebral convolution, or other anatomical asymmetries, over which the individual has no control and by which his destiny is determined, then he is certainly not morally responsible for his conduct. But is he on this account to be exempt from punishment? The vast majority of criminalists answer this question unhesitatingly in the negative, declaring that penal legislation is independent of metaphysical opinion, and that punishment is proper and imperative so far as it is essential to the protection and preservation of society. If the infliction of the penalties depriving a man of his freedom or his life is found to secure these ends, it is the duty of the tribunals established for the administration of justice to impose them without troubling themselves about the mental condition of the culprit or stopping to discuss problems which belong to the province of the psychiater. Legal tribunals are not offices in which candidates for the insane asylum are examined or certificates of admission to reformatories issued, but are organized as a terror to evil-doers in the general interests of society, and all their decisions should have this object in view. If a madman is not hanged for murder, it is solely because such a procedure would exert no deterring influence upon other madmen; society protects itself, in cases of this kind, by depriving the dangerous individual of his liberty and thus preventing him from doing harm; but it has no right to inflict upon him wanton and superfluous suffering. Even if it should be deemed desirable to kill him, the method of his removal should be such as to cause the least possible pain and publicity. Here, too, the welfare of society is the determinative factor.

This doctrine reduces confirmed criminals to the condition of ferocious beasts and venomous reptiles, and logically demands that they should be eliminated for precisely the same reason that noxious animals are exterminated, although neither the human nor the animal creatures are to blame for the perniciousness of their inborn proclivities and natural instincts. In the eyes of Courcelle-Seneuil a prison is a “kind of menagerie”; Naquet, the French chemist and senator, goes still farther, declaring that men are no more culpable for being criminal than vitriol is for being corrosive, and adding that it is our own fault if we put this stuff into our tea and are poisoned by it. The same writer maintains that “there is no more demerit in being perverse than in being cross-eyed or hump-backed.” In a recent lecture on criminal jurisprudence and biology Professor Benedikt cites the case of a Moravian robber and murderer, whose brain was found on dissection to resemble that of a beast of prey and who was therefore, in the opinion of the eminent Viennese authority, no more responsible for his bloody deeds than is a lion or a tiger for its ravages. The corollary to this anatomical demonstration is that one should treat such a man as a lion or a tiger and shoot him on the spot. Atavistic relapses, defective cerebral development and other abnormities undoubtedly occur in criminals, whose acts may be traced, in some degree, to these physical imperfections and therefore be pathologically stimulated and partially necessitated by them. On the other hand, there are thousands of persons with equally small and unsymmetrical craniums, who do not commit crime, but remain respectable, safe, and useful members of society.

Lombroso discovers in habitual malefactors a tendency to tattoo their bodies; but this kind of cuticular ornamentation indicates merely a low development of the Æsthetic sense, a barbarous conception of the beautiful or what would be called bad taste, and has not the slightest genetic or symptomatic connection with crime and the proclivity to perpetrate it. As a means of embellishing the exterior man it may be rude and unrefined, but after all it is only skin-deep, and does not extend to the moral character. Honest people of the lower classes take pleasure in disfiguring themselves in this way, and soldiers and sailors, who are very far from furnishing the largest percentage of criminals, are especially addicted to it, simply because they find ample leisure in the barracks and the forecastle to undergo this slow and painful process of what they deem adornment. According to Lombroso criminals have as a rule thick heads of hair and thin beards; but as the majority of them are comparatively young, these phenomena are by no means remarkable. He has also found that the hair of such persons is usually black or dark chestnut; had his investigations been carried on in Norway and Sweden instead of in Italy, he would have certainly come to the conclusion that flaxen hair is an index of a criminal character.

It would be difficult to deny the existence of a constitutionally criminal class, a persistently perverse element, which is the born foe of all law and order, at war with every form of social and political organization and whose permanent attitude of mind is that of the Irishman, who, on landing in New York, inquired: “Have ye a government here?” and, on receiving an affirmative answer, replied, “Then I’m agin’ it.” Criminal anthropologists have been especially earnest in their endeavours to define this pernicious type and to determine the physiological and physiognomical features, which characterize and constitute it. This line of research is unquestionably in the right direction, but as a reaction against barren scholastic speculations and brutal penal codes has been carried to excess by enthusiastic specialists and led to broad generalizations and hasty deductions from insufficient data. Taine’s definition of man as “an animal of a higher species, that produces poems and systems of philosophy, as silkworms spin cocoons and bees secrete honeycomb,” applies with equal force to the vicious side of human nature. Criminal propensities, as well as creative powers, are the resultants of race, temperament, climate, food, organism, environment and other pre-natal and post-natal influences and agencies, to which the individual did not voluntarily subject himself and from which he cannot escape. The acts, therefore, which he performs, whether good or evil, are as independent of his will as the colour of his hair or the shape of his nose; for while they are apparently volitional impulses, the will itself, from which they seem to proceed, is determined by forces as fixed and free from his control as are those which render him blue-eyed or snub-nosed.

The penological application of this philosophical principle has given rise to numerous theories concerning the nature and origin of crime. Lombroso and his disciples, as we have already intimated, attribute it to atavism or the survival in the individual of the animal instincts and low morals of the aboriginal barbarian. The criminal is simply a savage let loose in a civilized community and ignoring the ethical conceptions developed by ages of culture and performing actions that would have seemed perfectly proper and praiseworthy in the eyes of our pre-historic ancestors. The hero of the PalÆolithic age is the brigand and cut-throat of to-day. The criminal type is nothing but a reversion to the primitive type of the race, and the representatives of this school of anthropologists have been untiring in their efforts to discover physical and moral characteristics common to both: long arms like chimpanzees, four circumvolutions of the frontal lobes of the brain like the large carnivora, small cranial capacity like the cave-men, canine teeth like anthropoid apes and a simian nose. This analogy extends to the eyes, the ears, the hair, and even to the internal organs, the liver, the heart and the stomach, and the diseases by which they are affected. It has also been observed that assassins are brachycephalous and thieves dolichocephalous. Marro maintains that in many cases metaphors express real facts and embody the common conclusions of mankind based upon centuries of observation: swindlers have a foxy look, long-fingered persons are naturally thievish, whereas a club-fisted fellow is pretty sure to have a pugnacious disposition, and to be a born rough. Nevertheless social surroundings, educational influences and other outward circumstances are important factors, not so much in changing the character as in giving it direction; the same cerebral constitution and consequent innate predisposition may make a man a hero or a bravo, a dashing soldier like Phil Sheridan, or a daring robber like Fra Diavolo, according to the place of his birth and the nature of his environment.

In common discourse we speak of atrabiliary, spleeny, choleric, or even stomachous persons, but such expressions are, in most cases, survivals of antiquated beliefs concerning the functions of certain physical organs. Hypochondria has no more originary connection with the cartilage of the breastbone than with the cartilage of the ear. In the literal sense of the terms a large-brained man is not necessarily of superior intellectual power any more than a large-hearted man is naturally generous or a large-handed man instinctively grasping. So, too, the theory that intelligence and morality are in direct proportion to the size and symmetry of the encephalon is not sustained by facts; at least the exceptions to the rule are so many and so remarkable as to render it extremely misleading and therefore of little practical value as a scientific principle. Gambetta’s brain, for example, weighed only 1294 grammes, being fifty-eight grammes less in weight than that of the average Parisian, and was so abnormally irregular in its configuration as to seem actually deformed. Any physiologist, says Dr. Manouvrier, who should come across such a skull in a museum, would unhesitatingly pronounce it to be that of a savage. The third frontal circumvolution of the left lobe of his brain had in the posterior part a supplementary fold said by some to be the organ of speech and by others to be the organ of theft; perhaps both combined in the ability of the orator to steal away men’s hearts, as Antony says of the seductive eloquence of Brutus. The distinguished physiologist Bichat was an ardent advocate of this doctrine of the causal connection between cranial capacity and symmetry and vigorous and well-balanced mental faculties, but after his death his own cranium was found to be conspicuously lacking in the very characteristics which he deemed so essential to man as a moral and intellectual being. The late German professor Bischoff based his argument against the higher education of woman on the fact that the average female brain weighs only 1272 grammes, and asserted that a person with such a light encephalon must be organically incompetent to master the various branches of study taught in our universities. A post-mortem examination proved his own brain to be considerably inferior in weight to that of the average woman.

Careful investigations would doubtless furnish additional examples of this comical application of the argumentum ad hominem in refutation of the notion that intellectual capacity is determined by the bulk of the brain or the shape of the skull. Ugo Foscolo, one of the most celebrated of modern Italian poets, had a cranium, which, according to this standard of appreciation, ought to have belonged to an idiot. On the other hand, the brain of the “Hottentot Venus,” examined by Gratiolet, far surpassed in the symmetry of both hemispheres and the perfection of its circumvolutions the normal brains of the Caucasian race. The same phenomenon has been observed, although in a less striking manner, occasionally in cretins and quite often in criminals. Character is the resultant of a multitude of combined forces, the great majority of which are still unknown and perhaps unknowable quantities. The impulse given by each must be exactly estimated in order to predetermine the joint effect. No factor which contributes to its formation must be overlooked, and the acceptance of any one of them, however important it may seem to be, as the basis on which to reform and reconstruct our penal legislation, would be premature and pernicious. This hobby-horsical tendency, which is the vice of every specialist, is now the besetting sin of criminal anthropologists, each of whom is firmly convinced that he can reach the goal only on his own garran.

“The more advanced criminalists,” says Professor Von Kirchenheim, “are becoming thoroughly convinced that the penal codes of to-day do not correspond to the criminal world of to-day. No science has remained so deeply rooted and grounded in scholasticism as jurisprudence; and this evil is most clearly perceptible in the province of criminal law. The necessity of a change in our penal legislation has already made itself widely felt. The contest with crime must now be carried on in a different manner from what it was when men waged war with bows and arrows; modern criminality must be fought, as it were, with repeating rifles.” In other words, we can never suppress crime by meeting it with bludgeons and boomerangs and other rude implements of barbarous warfare, but must encounter it with the finest and most effective weapons of precision, which the armoury of modern science can put into our hands. Society has outgrown the crude conception of punishment as mere retaliation or retribution incited by revenge. There is no doubt that even in the most enlightened countries, penology as a science is still in its infancy, and is only just beginning to feel the uncomfortable girding of its scanty swaddling-bands and blindly kicking itself free from them. That this first emancipatory effort should be somewhat clumsy, and occasionally attended by comical casualties and even serious disasters, lies in the very nature of the case. It is evident, too, that the antiquated and utterly irrational methods now employed for the suppression of crime tend directly to increase it. It is the aim of the positive, in distinction from the classical school of criminalists to discover the real causes of criminal actions, and thus to endeavour to eradicate or neutralize them. A casual criminal, for example, whom external conditions, accidental circumstances, sudden temptations or bad influences have led astray, should not be treated in the same manner, although guilty of the same overt act, as the habitual or constitutional criminal, whose wrong-doing arises from a diseased, ill-balanced or undeveloped mental or physical organization, and is therefore an inborn and perhaps irresistible proclivity. The latter is hardly responsible for his conduct, and the possibility of reforming him is slight. The only proper thing to do with such a culprit is to render him personally harmless to society either by death or perpetual incarceration, and to prevent him from propagating his kind. The law of the survival of the fittest through selection suggests as its necessary sequence the suppression of the unfittest through sterilization. Nature has her own effective and relentless method of attaining this desirable result; but man is constantly thwarting her beneficent purposes by all sorts of pernicious schemes originating in factitious sentimentalism and maudlin sympathy, which under the plea of philanthropy tend to foster and perpetuate moral monstrosities to the discomfort and detriment of civilized society and the permanent deterioration of the race. To sentence persons of this class to eight or ten years’ imprisonment and then to turn them loose again as a constant source of peril to mankind, is the greatest folly that any tribunal can possibly commit. It is a wrong done both to the criminal and to the community of which he is a member. The penalties imposed by the law should be determined not solely by the enormity of the crime, but chiefly by the character of the criminal. Paradoxical as such a conclusion may be, it is nevertheless a strictly logical deduction from the premises, that the more corrupt he is by his physical constitution and therefore the less culpable he is from a moral point of view, the more severe should be the sentence pronounced upon him. Where the vicious propensity is in the blood and beyond the reach of moral or penal purgations, the only safety is in the elimination of the individual, just as the only remedy for a gangrened limb is amputation. We ridicule ancient and mediÆval courts of justice for prosecuting bugs and beasts, but future generations will condemn as equally absurd and outrageous our judicial treatment of human beings, who can no more help perpetrating deeds of violence, under given conditions, than locusts and caterpillars can help consuming crops to the injury of the husbandman, or wild beasts can help rending and devouring their prey. It is also interesting to know that in former times the animal was not punished capitally because it was supposed to have incurred guilt, but as a memorial of the occurrence, or in the language of canonical law: Non propter culpam sed propter memoriam facti pecus occiditur. It was put to death not because it was culpable, but because it was harmful; and this is the ground on which the radical wing of criminal anthropologists would repress and eliminate a vicious person without regard to his mental soundness or moral responsibility; to use Garofalo’s metaphor he is a microbe injurious to the social organism and must be destroyed.

Lombroso carries his theory of the innateness, hereditability and ineradicableness of criminal propensities so far as to affirm that “education cannot change those who are born with perverse instincts,” and to despair of correcting an obstinate bias of this sort even in a child. In accordance with this idea his disciple, Le Bon, proposes to “deport to distant countries all professional criminals or persistent relapsers into vice (rÉcidivistes) together with their posterity,” and would thus practically revive the barbarous principle of visiting the sins of the fathers upon the children, although he does not regard their conduct as sinful in the sense of being a voluntary transgression of the moral law, but as the result of a transmitted taint and organic deficiency, for which the individual is in no wise responsible. It is hardly necessary to add that this doctrine is not sustained by the statistics of reformatories, houses of refuge and similar institutions, which have now taken the place of the prison and the scaffold in the case of juvenile offenders.

Those who look upon crime as a pathological phenomenon find a striking illustration and strong confirmation of their views in violations of the law committed under the impulse of hypnotic suggestion. Some maintain that all acts originating in this manner are purely automatic, and acquit the person performing them of all moral and legal responsibility, since they express the will and purpose of the hypnotizer, who alone should be held accountable. Others hold that the man, who consents to be hypnotized and thus voluntarily surrenders his will-power and permits himself to be used as an instrument for the perpetration of crime, should be punished for his offences and not allowed to go scot-free by pleading the force majeure of hypnotic suggestion. The liability to punishment, it is justly argued, would be a safeguard to society by putting a wholesome and effective check on hypnotic experimentations. There is at least no reason why the hypnotized subject should not be called to account for accomplicity. Any passion may become automatic and irresistible by long indulgence and assiduous cultivation, so that the man is overmastered by it and cannot help yielding to it under strong temptation; but the victim of a vicious habit has no right to urge the force of an evil propensity in exculpation of himself. The inborn or inveterate badness of a man’s character may explain, but cannot excuse his bad conduct in the impartial and inexorable eye of justice. So, too, he who sins against his own worthiness and dignity as a rational being by choosing to annul his power of self-determination as a voluntary agent and become a helpless tool in the hands of another, ought not wholly to escape the consequences of his folly. That the hypnotizer should be made fully responsible for the realization of his suggestions, no representative of either the positive or classical school of criminalists would probably deny. To take a man’s life by means of hypnotic suggestion is as truly subornation to murder as to hire an assassin to plunge a dagger into his heart.

As regards hypnotism itself, it would be strange enough if we should discover in it the real scientific basis of witchcraft, and modern legislation should prosecute and punish hypnotizers as mediÆval legislation prosecuted and punished sorcerers. The sympathetic influence of a morbidly imaginative mind upon the body in directing the currents of nervous energy and increasing the flow of blood towards particular points of the physical organism, so as to produce stigmata and similar abnormal phenomena, has long been recognized as an adequate explanation of much mediÆval and modern miracle-mongering. It would now seem as if hypnotism, or the magnetic influence of one man’s will upon another man’s mind and body were destined to furnish the key to still greater marvels and reveal the true nature and origin of what has hitherto passed for divine inspiration or diabolical possession. Charcot, Renaut, Fowler and other eminent neuropathologists have conclusively shown that certain forms of hysteria sometimes produce tumors, ulcers, muscular atrophy, paralysis of the limbs and like affections apparently organic, but really nervous. In such cases any kind of faith-cure, in which the patient has confidence, prayer, the laying on of hands, the water of Lourdes or of St. Ignatius, medals of St. Benedict, scapularies of the Virgin, seraphic girdles, a pilgrimage to the shrine of a saint or contact with a holy relic may prove far more efficacious than drugs and are therefore recommended by priests and occasionally even prescribed by physicians, who are far too enlightened to regard such healings as miraculous or supernatural. The success of scientific research in disclosing the physical basis of intellectual life is gradually undermining the foundations of so-called spiritualism, and rendering it more and more impossible to mistake symptoms of chlorosis and hysterical weakness for spiritual gifts and signs of God’s special favour. Sickly women are no longer treated as seeresses and their vague and incoherent sayings treasured as oracular utterances.

One of the chief difficulties encountered by those who seek to frame and administer penal laws on psycho-pathological principles arises from the fact that no one has ever yet been able to give an exact and adequate definition of insanity. However easy it may be to recognize the grosser varieties of mental disorder, it is often impossible even for an expert to detect it in its subtler forms, or to draw a hard and fast line between sanity and insanity. An eminent alienist affirms that very few persons we meet in the counting-room, on the street or in society, or with whom we enjoy pleasant intercourse at their firesides, are of perfectly sound mind. Nearly every one is a little touched; some molecule of the brain has turned into a maggot; there is some topic that cannot be introduced without making the portals of the mind grate on their golden hinges,—some point at which we are forced to say,—

“O, that way madness lies; let me shun that.”

It is possible, however, that this very opinion may be a fixed idea or symptomatic eccentricity of the alienist himself. The theory that all men are monomaniacs may be merely his peculiar monomania. Still there is unquestionably this much truth in it, that nearly every person has developed some faculty at the expense of the others and thus destroyed his mental equilibrium. Every tendency of this kind, which is not checked or balanced and in some way rounded off in the growth of the character, becomes morbidly strong and leads to a sort of insanity. The specialist is always exposed to this danger of growing into a man of one idea; his monomania may be in the direction of valuable research or in the pursuit of a foolish whim, resulting in useful inventions or dissipating itself in chimerical projects; it may be a harmless crotchet or a vicious proclivity, philanthropic or misanthropic; it is, nevertheless, a bent or bias and so far a deviation from the norm of perfect intellectual rectitude.

A madman, says Coleridge, is one who “mistakes his thoughts for person and things.” But here the frenzies of the lunatic intrench on the functions of the poet, who “of imagination all compact,” takes his fancies for realities,

“Turns them to shapes, and gives to airy nothing
A local habitation and a name.”

Coleridge’s definition includes also the mythopoeic faculty, the power of projecting creations of the mind and endowing them with objective actuality and independent existence, which in the infancy of the race peopled heaven and earth with phantasms, and still croons over cradles and babbles of brownie and fairy in nurseries and chimney-corners. No progress of science can wholly eradicate this tendency to mythologize. In the absence of better material, it seizes upon the most prosaic and practical improvements in modern household life and clothes them with poetry and legend. The imaginative child of New York or Boston, after feeding the mind on fairy tales, converts the ordinary gas-pipe into the den of a dragon, which puts forth its fiery tongue when the knob is turned. The sleeping figure of a virgin carved in marble and copied from an ancient Greek sculpture of Ariadne, which reposes on an arch in the park of Sans-souci at Potsdam, has been transformed by the popular imagination into an enchanted princess, who will awake as soon as a horseman succeeds in springing over it three times with his steed. So vivid is the belief in this story that many good Christians never pass through the archway without making the sign of the cross as a prophylactic against possible demonic influences. The Suabian peasant still believes that the railroad is a device of the devil, who is entitled by contract to a tollage of one passenger on every train; he is in a constant state of anxiety lest his turn may come on the next trip and always wears a crucifix as the best means, so far as his own person is concerned, of cheating the devil of his due. As the Church has uniformly consigned great inventors to the infernal regions, his Satanic Majesty could have never had any lack of ingenious wits among his subjects capable of advising him in such matters.

An important consideration, which did not disturb the minds of mediÆval jurists, nor stay the hand of strictly retributive justice, is the fact, now generally admitted, that crimes, like all other human actions, are subject to certain fixed laws, which seem to some extent to remove them from the province of free will and the power of individual determination. Professor Morselli has shown statistically that suicide, which we are wont to consider a wholly voluntary act, is really dependent upon a great variety of circumstances, over which man has no control: climate, seasons, months, days, state of crops, domestic, social, political, financial, economical, geographical and meteorological conditions, sun, moon, and stars all work together, impelling him to self-destruction or keeping him from it. Suicide increases when the earth is in aphelion, and decreases when it is in perihelion. Race and religion are also important factors in aggravating or mitigating the suicidal tendency, Germans and Protestants being most, and Semitic nations and Mohammedans, including those of Aryan and African blood, being least addicted to it. Suicide is, in fact, the resultant of a vast number of complicated and far-reaching forces, which we can neither trace nor measure, and of which the victims themselves are for the most part unconscious. To a very considerable degree, it is a question of environment in the broadest sense of the term; “an effect,” says Morselli, “of the struggle for existence and of human selection, working according to the laws of evolution among civilized peoples.” What is proved to be true of self-slaughter is equally so of murder and every other crime.

An additional reflection, that “must give us pause” in the presence of crime, is that some of the chief causes operating to produce the manifold evils afflicting society and threatening to subvert it, are due in a great measure to the present egoistic organization of our social and industrial system, the selfish and unscrupulous power of wealth directed and stimulated by superior intelligence and energy, on the one hand, and the brute forces of ignorance driven to despair by the disheartening and debasing pressure of poverty, on the other hand, arrayed against each other in fierce and bitter conflict. Much of the individual viciousness, which society is required to punish, springs directly from the unjust and injurious conditions of life, which society itself has created. It is the perception of this fact that disturbs the conscience, puzzles the will, and palsies the arm of the modern law-giver and executor of justice.

MediÆval legislators were not restrained by any scruples of this sort; they regarded the criminal, both human and animal, as the sole author of the crime, ascribing it simply to his own wickedness and never looking beyond the mere actual deed to the social influences, psychical and physical characteristics and inherited qualities, that impelled him with irresistible force to do iniquitous things. This was doubtless a very narrow, superficial and utterly unphilosophical view of human action and responsibility; the danger now-a-days lies in the opposite extreme, in the tendency to pity the vicious individual as the passive product and commiserable victim of unfortunate conditions, and while engaged in the laudable attempt to improve these conditions by working out broad and benevolent plans of permanent relief and reformation for the future amelioration of society, to relax penalties and to fail in providing by sufficiently stringent measures for its present security. Tribunals have only to do with individual criminals as their conduct affects the general welfare. In what manner their characters have been formed by ancestral agencies and other predispositions may be an interesting study to the psychologist and the sociologist, but does not concern the judge or the jurist in the discharge of their official functions. The problem of crime is therefore a very simple one, so far as the criminal lawyer has to deal with the concrete case, but very complex, when we look beyond the overt act to its genesis in the life of the race. The proper administration of penal justice is weakened and defeated by mixing itself up with psycho-pathological inquiries wholly foreign to it.

It is a curious coincidence that the theory of evolution, in its application to man’s free agency, should arrive at essentially the same conclusion as the theology of Augustine and Calvin. Predestination, which the suffragan of Hippo and the Genevan divine attributed to the arbitrary decrees of God, evolution traces to the influences of heredity upon individuals, predetermining their bodily and mental constitutions. There is, however, a wide difference between these two doctrines in their workings. From the clutch of a deity “willing to show his wrath and to make his power known,” no man can by any effort of his own effect his escape. Against this imperious and general sentence of damnation no process of development, no upward striving, no individual initiative can be of any avail. Evolution, on the contrary, promises a gradual release from low ancestral conditions—the original sin of the theologians—and opens up to the race a way of redemption, not only through natural selection and spontaneous variations resulting in higher and nobler types of mankind, but also through the modification of inherited traits by careful breeding, thorough discipline and the conscious and constant endeavour of every human being to improve and perfect himself. Salvation through the “election of grace” is by no means identical with salvation through the “survival of the fittest.” The righteousness of those whom God has chosen as “the vessels of mercy whom he had afore prepared unto glory,” may be and probably is “as filthy rags”; evolutionary science, on the contrary, recognizes and appreciates redeemable qualities by selecting, strengthening and propagating them and by this means aims ultimately to redeem the world. It imposes upon each man the duty and necessity of working out his own salvation, not with fear and trembling at the prospect of meeting an angry deity, but with hope and cheerfulness, knowing that the beneficent forces of nature are working in him, as in all forms of organic life, in obedience to the laws of development, towards the goal of his highest possible perfection by gradually eliminating the heirloom of the beast and the savage, and letting the instincts of the tiger and the ape slowly die within him. “The best man,” said Socrates, “is he who seeks most earnestly to perfect himself, and the happiest man is he who has the fullest consciousness that he is perfecting himself.” This utterance of the Athenian sage expresses the fundamental principle of the ethics of evolution, according to which there can be no greater sin than the neglect of self-culture, holding, as it does, in the province of science a place corresponding in importance to that which the unpardonable sin against the Holy Ghost holds in the province of theology. No one is blamable for inheriting bad tendencies; but every one is blamable for not striving to eradicate them. If evil impulses prove to be irresistible, then society must step in and render them harmless by depriving of life or liberty the unfortunate victims of such propensities.

Again, if the mental and moral qualities of the lower animals differ from those of man, not in kind, but only in degree, and the human mammal is descended from a stock of primates, to which apes and bats belong, and dogs and cats and pigs are more remotely akin, it is difficult to determine the point at which moral and penal responsibility ceases in the descending, or begins in the ascending scale of being. That beasts and birds and even insects commit acts of violence, which in human agents would be called crimes, and which spring from the same psychical causes and, as we have shown in another work (Evolutionary Ethics and Animal Psychology. New York: D. Appleton and Co.; London: William Heinemann, 1898), are punished by the herd, the flock or the swarm in a more or less judicial manner, is undeniable. The zoÖpsychologist Lacassagne divides the criminal offences of animals into six classes or categories, the ground of the classification being the motives which underlie and originate them. The lowest or most rudimentary motive to crime in both man and beast is hunger, the operation of which is seen in the spectacle of one savage killing another in order to get sole possession of a wild beast slain by them in common, and in the ferocity of two dogs fighting over a bone. Perhaps the great majority of crimes afflicting society at the present time have their origin in this source. Next to the desire of the individual to preserve himself comes the desire to preserve his kind; this motive is commonly considered a more generous impulse and is praised as parental affection. This earliest and most primitive of altruistic emotions is exceedingly strong in the lower animals, especially in those whose offspring are comparatively helpless in infancy, as is the case with all species of monkeys, and manifests itself not only in tender care of the young, but also in theft, robbery, and other acts of violence committed for their sake. The wanton love of destruction characterizes both beasts and men; there are roughs and vandals among the former as well as among the latter, who take a malicious delight in doing injury to persons and property. Vanity and the desire of “showing off” play no small part in the wrongdoings of apes and apish men and women. Other incentives to crime are ambition, sexual passion, gregariousness, the concentrated egoism and merciless brutality of a crowd even in the most civilized communities, the outrages so recklessly perpetrated by what a French jurist, M. Tarde, calls “that impulsive and maniac beast, the mob.” It may be remarked, too, that the kinds of criminal actions, which civilization tends to diminish among men, domestication tends to diminish among the lower animals.

If these statements be correct, why should not animals be held penally responsible for their conduct as well as human beings? There are men apparently less intelligent than apes. Why then should the man be capitally punished and the ape not brought to trial? And if the ape be made responsible and punishable, why not the dog, the horse, the pig, and the cat? In other words, does evolutionary criminology justify the judicial proceedings instituted by mediÆval courts against animals or regard the typical human criminal as having in this respect no supremacy over the beast? Does modern science take us back to the barbarities of the Middle Ages in matters of penal legislation, and in abolishing judicial procedure against quadrupedal beasts is it thereby logically forced to stay the hand of justice uplifted against bipedal brutes? The answer to these questions is unhesitatingly negative. ZoÖpsychology is the key to anthropopsychology and enables us to get a clearer conception of the genesis of human crime by studying its manifestations in the lower creation; we thus see it in the process of becoming, acquire a more correct appreciation of its nature and origin and learn how to deal with it more rationally and effectively in bestial man.

Another point discussed by Plato and still seriously debated by writers on criminal jurisprudence is whether punishment is to be inflicted quia peccatum est or ne peccetur; in other words, whether the object of it should be retributive or preventive. The truth is, however, that both of these motives are operative and as determining causes are so closely intermixed that it is impossible to separate them. As the distinguished criminalist, Professor Von Liszt, has remarked one might as well ask whether a sick man takes medicine because he is ill or in order to get well. The penalty is imposed in consequence of the commission of a crime and also for the purpose of preventing a recurrence of it, and is therefore both retributory and reformatory. Punishment is defined by Laas as “ethicized and nationalized revenge, exercised by the state or body politic, which is alone impartial enough to pronounce just judgments and powerful enough to execute them.” Civilization takes vengeance out of the hands of the injured individual and delegates it to the community or commonwealth, which has been outraged in his person. The underlying principle, however, is, in both cases, the same, and the idea of justice, as administered by the community, does not rise above that entertained by the aggregate or average of individuals composing it.

The recent growth of sociology and especially the scientific study of the laws of heredity thus tend, by exciting an intelligent interest in the psychological solution of such questions, to render men less positive and peremptory in their judicial decisions. The intellectual horizon is so greatly enlarged and so many possibilities are suggested, that it is difficult for conscientious persons, strongly affected by these speculations and honestly endeavouring to make an ethical or penal application of them, to come to a prompt and practical conclusion in any given case. The voice of decision loses its magisterial sternness and

“the native hue of resolution
Is sicklied o’er with the pale cast of thought.”If it be true, as Mr. Galton affirms, that legal ability is transmitted from father to son, criminal proclivity may be equally hereditary, and the judge and the culprit may have reached their relative positions through a line of ancestral influences, working according to immutable and inevasible laws of descent.

Schopenhauer maintained the theory of “responsibility for character,” and not for actions, which are simply the outgrowth and expression of character. The same act may be good or bad according to the motives from which it springs. This distinction is constantly made both in ethics and in jurisprudence, and determines our moral judgments and judicial decisions. Yet the chief elements, which enter into a person’s character and contribute to its formation, lie beyond his control or even his consciousness, and in many cases have done their work before his birth. Responsibility for character is equivalent to responsibility for all the inherited tendencies and prenatal influences, of which character is the resultant, and leads at last to the theological dogma of the imputation of sin all the way back to Adam as the federal head of the race, a doctrine which Schopenhauer would be the first to repudiate. Besides, evil propensities and criminal designs are recognizable and punishable only when embodied in overt acts. The law cannot deprive a man of life or liberty because he is known to be vicious and depraved, although the police in the exercise of its protective and preventive functions and as a means of providing for the general security, may feel in duty bound to keep a watchful eye on him and to make an occasional raid on the dens and “dives” haunted by him and his kind. There are also instances on record, in which it is impossible to trace the culpable act to any marked corruption of character.

A rather remarkable illustration of this fact is furnished by the trial of Marie Jeanneret, which took place at Geneva in Switzerland in 1868 and which deservedly ranks high among the causes cÉlÈbres of the present century, both as a legal question and a problem of psycho-pathology. [At the time when this trial occurred, the writer directed attention to the peculiar and perplexing features of the case in The Nation for January 7, 1869, p. 11.] Dumas in his novel Le Comte de Monte Christo, describes the character and career of a young, refined and beautiful woman, moving in the best circles of Parisian society, and yet poisoning successively six or seven members of her own family; but even the most imaginative and audacious of French romancers did not dare to delineate such criminality without ascribing it to some apparently adequate motive. Madame de Villefort administered deadly potions to her relatives under the impulse of a morbidly intense maternal love, which centred all her moral and intellectual faculties on the idea of making her son the sole heir to a large estate. Affection and social ambition for her offspring incited her to the murder of her kin. But the invention, which created such a monster of sentimental depravity, has been far surpassed in real life by the exploits of Marie Jeanneret, a Swiss nurse, who took advantage of her professional position to give doses of poison to the sick persons confided to her care, from the effects of which seven of them died.

In the commission of this monotonous series of diabolical crimes, the culprit does not seem to have been animated either by animosity or cupidity. On the contrary, she always showed the warmest affection for her victims, and nursed them with the tenderest care and the most untiring devotion, as she watched the distressful workings of the fatal draught; nor did she derive the slightest material benefit from her course of conduct, but rather suffered considerable pecuniary loss by the death of her patients. The testimony of physicians and alienists furnished no evidence of insanity, nor did she show any signs of atavistic reversion, physiological abnormity or hereditary homicidal bent. Monomaniacs usually act fitfully and impulsively; but Marie Jeanneret always manifested the coolest premeditation and self-possession, never exhibiting the least hesitation or confusion, or the faintest trace of hallucination, but answered with the greatest clearness and calmness every question put by the president of the court. Even M. Turrettini, the prosecuting attorney, in presenting the case to the jury, was unable to discover any rational principle on which to explain the conduct and urge the conviction of the accused; and after exhausting the common category of hypotheses and showing the inadequacy of each, he was driven by sheer stress of inexplicability to seek a motive in “l’espÈce de voluptÉ qu’elle Éprouverait À commettre un crime,” or what, in less elegant, but more vigorous Western vernacular, would be called “pure cussedness.” Not only was such an explanation merely a circumlocutory confession of ignorance, but it was wholly inconsistent with the general character of the indictee.

Indeed, the persistent and pitiless perpetration of this one sort of crime by this woman, under circumstances which should have excited compassion in the hardest human heart, seems more like the working of some baneful and irrepressible force in nature, or the relentless operation of a destructive machine, than like the voluntary action of a free and responsible moral agent. M. Zurlinden, the counsel for the defendant, dwelt with emphasis upon this mysterious phase of the case and thus saved his client from the scaffold. The jury, after five hours’ deliberation, rendered a verdict of “Guilty, with extenuating circumstances,” as the result of which the accused was sentenced to twenty years’ hard labour. As a matter of fact, there were no circumstances of an extenuating character except the utter inability of the jurors to discover any motive for the commission of such a succession of cold-blooded atrocities.

After fifteen years’ imprisonment the convict died. During this whole period of incarceration she not only showed great intelligence and strict integrity, but was also remarkably kind and helpful to all with whom she came in contact. She instructed her fellow-convicts in needle-work and fine embroidery, loved to attend them in sickness, and by her general influence raised very perceptibly the tone of morals in the workhouse. If it be true, as asserted by Mynheer Heymanns, one of the latest expounders of Schopenhauer’s ethics, that “a man is responsible for his actions only so far as his character finds expression in them, and is to be judged solely by his character,” what shall be done in cases like the afore-mentioned, in which the criminal conduct is exceptional, and so far from being symptomatic of the general character stands out as an isolated and ugly excrescence and appalling abnormity? According to this theory crime is to be punished only when it is the natural outgrowth and legitimate fruit of the criminal’s individuality and society is to be left unprotected against all maleficence not traceable to such an origin.There can be hardly any doubt that the Swiss nurse was a toxicomaniac and that she had become infatuated with poisons, partly by watching their effects on her own system, and partly by reading about their properties in medical and botanical works, to the study of which she was passionately devoted. Did not Mithridates, if we may believe the statements of Galen, experiment with poisons on living persons? Why should she not follow such an illustrious example, especially as she never hesitated to take herself the potions she administered to others; the only difference being that habit had made her, like the famous King of Pontus, proof against their venom. She often attempted analyses of these substances, and in one instance was severely burned by the bursting of a crucible, in which she was endeavouring to obtain atropine from atropa belladonna or deadly nightshade. It was this terrible poison, which is endowed with exceedingly energetic qualities and is therefore used by physicians with extreme precaution, that seems to have had an irresistible fascination for her, growing into an insane desire to discover and test its occult virtues. She had read and heard of zealous scientists and illustrious physicians, who had experimented on themselves and on their disciples, and become the benefactors of mankind; why then should she not adopt the same method in the pursuit of truth and use for this purpose the physiological material which her profession placed in her hands?

However preposterous such reasoning on her part may appear to us and however vaguely and subconsciously the mental process may have been carried on, it offers the only theory adequate to explain all the facts and to account for the almost incredible union of contradictory traits in her character. The enthusiasm of the experimenter overbore in her the native sympathy of the woman. She observed the writhings of her poisoned victims with as “much delight” as Professor Mantegazza confesses he felt in studying the physiology of pain in the dumb animals “shrieking and groaning” on his tormentatore. “The physiologist,” says Claude Bernard, “is no ordinary man. He is a savant, seized and possessed by a scientific idea. He does not hear the cries of suffering wrung from racked and lacerated creatures, nor see the blood which flows. He has nothing before his eyes but his idea and the organisms, which are hiding the secrets he means to discover.” Marie Jeanneret was a fanatic of this kind. She, too, was a woman possessed with ideas as witches were once supposed to be possessed with devils. Had she prudently confined her experiments to the torture of helpless animals, she might perhaps have taken rank in the scientific world with Brachet, Magendie and other celebrated vivisectors, and been admitted with honour to the Academy, instead of being thrust ignominiously into a penitentiary.

The assertion as regards any supposed case of madness, that “there’s method in it,” is popularly assumed to be equivalent to a denial of the existence of the madness altogether. But psycho-pathology affords no warrant for such an assumption. An individual, who commits murder under the impulse of morbid jealousy, pecuniary distress, social rancour, political or scientific fanaticism, or any other form of monomania, is not the less the victim of a mind diseased because he shows rational forethought in planning and executing the deed. His mental faculties may be perfectly healthy and normal in their operation up to the point of derangement, from which the fatal act proceeds. No chain is stronger than its weakest link; and this is equally true of physical and psychical concatenations. Under such circumstances the sane powers of the mind are all at the mercy of the one fault and are made to minister to this single infirmity.

According to English law a man is irresponsibly insane, when he has “such 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.” This definition is very incomplete and covers only the most obvious forms of insanity; perhaps in the great majority of cases there is no “defect of reason” nor “disease of mind” in the proper sense of these terms, but only a disturbance of the emotions or perversion of the will originating in physical disorder. Besides, it is undeniable that animal intelligence is capable of distinguishing between right and wrong and of comprehending what is punishable and what is not punishable. In general when a dog does wrong, he knows that he is doing wrong; and a monkey often takes delight in doing what is wrong simply because he knows it is wrong. If a monkey gets angry and kills a child, he obeys the same vicious propensity that impels a brutal man to commit murder. There is no greater “defect of reason” in one case than in the other. Why then should the monkey be summarily shot or knocked on the head, and the man arrested, tried, convicted and hanged by the constituted authorities? Simply because such a public prosecution and execution would not exert any influence whatever in preventing infanticide on the part of other monkeys; if it could be shown that a formal trial of the monkey would produce this salutary effect, then it certainly ought not to be omitted. The recent attempt to modify the English law so as to render all “certifiably insane” persons irresponsible for their actions, would result in the abolition of all punishment for crime, since many physicians regard every criminal as insane and would not hesitate to certify their opinion to the proper tribunal.It is no easy task now-a-days for penal legislation to keep pace with psychiatral investigation and to adjust itself to the wide range and nice distinctions of modern psycho-pathology; nor is it necessary to do so. Salus socialis suprema lex esto. Society is bound to protect itself against every criminal assault, no matter what its source or character may be. This is the ultimate object not only of the prison and the scaffold, but also of all reformatories for juvenile offenders and vagabonds, who by judicious correction and instruction may perhaps be brought to amend their ways and thus be prevented from becoming a social danger by swelling the disorderly ranks of the permanently criminal classes. If a person proves to be unamenable to moral or penitential measures and remains an incorrigible transgressor, it is the duty of the community to set him aside by death or by life-long durance. Penal legislation does not aim primarily at the betterment of the individual; laws are enacted not for the purpose of making men good and noble, but solely for the purpose of rendering them safe members of society. This is effected by depriving the irremediably vicious of their liberty and, if necessary, also of their life.

The pardoning power, too, must be exercised with the utmost reserve and circumspection. The state does not look upon public offences as sins but as crimes. The introduction of the theological conception of delinquencies into the province of civil government has always been the vice of hierarchies and has never failed to work immense mischief by leading inevitably to impertinent intermeddling with matters of conscience and private opinion, putting a premium on pretended repentance and like hypocrisies, and converting the witness-box into a confessional and the court of justice into a court of inquisition. This has been uniformly the result wherever a body of priests has become a body of rulers, endowed with sovereignty in the administration of secular affairs.

If it could be conclusively proved or even rendered highly probable, that the capital punishment of an ox, which had gored a man to death, deterred other oxen from pushing with their horns, it would be the unquestionable right and imperative duty of our legislatures and tribunals to re-enact and execute the old Mosaic law on this subject. In like manner, if it can be satisfactorily shown that the hanging of an admittedly insane person, who has committed murder, prevents other insane persons from perpetrating the same crime, or tends to diminish the number of those who go insane in the same direction, it is clearly the duty of society to hang such persons, whatever may be the opinion of the alienist concerning their moral responsibility. Nor is this merely a hypothetical case or purely academical question. It is a well-established fact, that the partially insane, especially those affected with “moral insanity” or so-called “cranks,” have their intelligence intact, and are capable of exercising their reasoning powers freely and fully in laying their plans and in carrying out their designs. Indeed, criminals of this class are sometimes known to have entertained the thought that they would be acquitted on the ground of insanity, and have thereby been emboldened to do the deed; and it is by no means impossible, but highly probable, that a belief in the certainty of punishment would have acted as an effective deterrent. A case of this kind occurred in 1894 in England, where an inmate of a lunatic asylum deliberately murdered a lawyer, who was visiting the institution. The murderer declared that he had no grudge against his victim, but believed himself to be persecuted in general and wished to call attention to his wrongs by assassinating some official or prominent person. His method of redress was that of the ordinary anarchist; and his confession that he would not have dared to commit the act unless he had believed that as a certificated lunatic under confinement he ran no risk of being hanged, illustrates the point in question. There can be no doubt, for example, that the execution of Guiteau for the assassination of Garfield has greatly lessened the dangers of this kind to which the President of the United States is exposed; just as the swift and severe punishment of the Chicago anarchists has dampened the zeal and restrained the activity of the fanatics, who labour under the delusion that, in a free country, dynamite bombs are the fittest means of disseminating reformatory ideas and bringing about the social and political regeneration of the world.

From this point of view it is hardly necessary to remark upon the absurdity of Lombroso’s assertion that the jurists, who formerly condemned and punished animals, were more logical and consistent than those who now pass sentence of death on cretins like Grandi or cranks (grafomani matteschi) like Passannante and Guiteau (Archivio di Psichiatria. Torino, 1881, Vol. II. Fasc. IV.), since he utterly ignores the preventive character and purpose of judicial punishment and its practical utility in checking the homicidal propensities of such persons, whereas the criminal prosecution and capital punishment of a pig for infanticide will not have the slightest effect in preventing other pigs from mangling and devouring little children.

That animals might be deterred from doing violence to men by putting one of their kind to death and suspending its body as a scarecrow is maintained by a distinguished writer in the first half of the sixteenth century, Hierolymus Rosarius, the nuntius of Pope Clement VII. to the court of Ferdinand I., then King of Hungary, who states that in Africa crucified lions are placed near towns, and that other lions, however hungry they may be, are kept away through fear of the same punishment: cujus poenÆ metu, licet urgeat fames, desinunt. He records also that in riding from Cologne towards DÜren, he and his companions saw in the vast forest two wolves in brogans hanging on a gallows, just like two thieves, as a warning to the rest of the pack: “Et nos ab Agrippina Colonia Duram versus equitantes in illa vasta silva, vidimus duos caligatos lupos non secus quam duos latrones, furcÆ suspensos; quo similis poenÆ formidine a maleficio reliqui deterreantur.” In like manner the American farmer sets up a dead hawk as a deterrent for the protection of his hens. We may add that Rosarius entertained a high opinion of the intelligence and moral character of animals and wrote a book to prove their frequent superiority to men in the use of their rational faculties. This very clever and original work entitled: Quod animalia bruta sÆpe ratione utantur melius homine, was first published by Gabriel NaudÉ at Paris in 1648; an enlarged edition was issued by Ribow at Helmstedt in 1728, with a dissertation on the soul in animals.

In the class of ill-poised minds, yclept cranks, just mentioned, the spirit of imitation is peculiarly strong and morbidly contagious. The celebrated psychiater, Baron Von Feuchtersleben, in his treatise On the Diatetics of the Soul, cites the case of a French soldier, who shot himself in a sentry-box; soon afterwards, several other soldiers took their lives in the same manner and in the same place. Napoleon I. ordered the sentry-box to be burned and thus put an end to the suicides. A similar instance is recorded by Max Simon in his HygiÈne de l’esprit, in which he states that a workman hanged himself in the embrasure of a gate, and his example was followed directly by a dozen of his fellows, so that it was found necessary to wall up the gate in order to stop this strange epidemic. The same effect is produced by popular romances, in which the hero or heroine or both together dispose of themselves in this way; sometimes whole communities are thus infected by a single work of fiction; perhaps the most notable case of this kind in modern literature is the era of sentimentalism and suicidism which followed the publication of Goethe’s Werther. It is well known, too, that another class of sensational novels, the plots of which consist in the development of criminal intrigues, tend to promote crime by rendering it fascinating and indicating an attractive and exciting method of perpetrating it. We have a recent and very striking instance of this kind in the origin and evolution of the notorious Dreyfus affair. In June 1893, a year and a half before the arrest of Dreyfus, a novel entitled Les Deux FrÈres, by Louis Letang, appeared in the Paris Petit Journal, the plot of which may be concisely described as follows. A young and capable officer, Captain Philippe Dormelles, who holds a position of confidence in the French department of war, is envied and hated by two colleagues named AurÉlien and Daniel. Their enmity and jealousy finally become so intense that they conspire to effect his ruin by accusing him of selling to a foreign power the secrets of the national defence. It is arranged that a compromising letter imitating the handwriting of Dormelles and addressed to a foreign military attachÉ shall be placed in the secret archives, where it will fall into the hands of the head of the department Lieutenant-Colonel Alleward. Dormelles is arrested and thrown into the prison Cherche-Midi, and at the same time Daniel causes a violent article to be inserted in a newspaper Le Vigilant, charging him with high treason, and seeking to excite public opinion against him. This article concludes with the false statement that a search in Dormelles’ department had led to the discovery of important documents referring to the fabrication of smokeless powder, and that thereupon Dormelles had confessed his guilt. He is then sentenced to the galleys, but his betrothed is convinced of his innocence and finally succeeds in detecting and exposing the forgeries. Lieutenant-Colonel Alleward is arrested and commits suicide in prison, not with a razor like Henry, but with a revolver. One scene in the novel describes the appearance of a veiled lady on the very spot near the Champs ElysÉes, where the mysterious veiled lady is said to have appeared to Esterhazy three years later and for much the same purpose. The French minister of war, Mercier, was forced to proceed against Dreyfus by the Libre Patrole, which published lies about his confession, as Le Vigilant did about Dormelles. The only rational explanation of this remarkable concurrence of events, as they are narrated in the fiction and afterwards occurred in fact, is that the method of conducting the conspiracy against Dreyfus and the possibility of accomplishing it were suggested by Letang’s story, although the conspirators doubtless did not anticipate that the logic of events would render the results of their falsehoods and forgeries as fatal to them as they were to their prototypes in the novel. Every scoundrel is firmly convinced that he can pattern after his precursors in villainy, avoid their mistakes and commit the same crime without incurring the same penalty.

That paroxysms of epilepsy, hysterics and various forms of frenzy are contagious and may be easily communicated to nervous persons, who witness them, has been clearly proved. Vicious passions obey the same law of imitation even in a still higher degree than tender emotions and nervous diseases, and more than two centuries ago the illustrious jurisconsult, Samuel Pufendorf, laid down the general principle that he who for the first time commits a crime liable to spread by contagion and to become virulent, should be punished with extreme severity, in order that it may not infect others and create a moral pestilence.

The hemp cure is always a harsh cure, especially where there is any doubt as to the offender’s mental soundness; but in view of the increasing frequency with which atrocious and wilful crime shelters itself under the plea of insanity and becomes an object of misdirected sympathy to maudlin sentimentalists, the adoption of radical and rigorous measures in the infliction of punishment were perhaps an experiment well worth trying. Meanwhile, let the psychiater continue his researches, and after we have passed through the present confused and perilous period of transition from gross and brutal mediÆval conceptions of justice to refined and humanitarian modern conceptions of justice, we may, in due time, succeed in establishing our penal code and criminal procedure upon foundations that shall be both philosophically sound and practically safe.