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.