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.