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 pœnæ 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 pœnæ 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.