“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 mythopœic 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.