The instinct of retaliation was not readily restrained by reasoning or proofs of irresponsibility. In postulating freedom of choice under all physical conditions; in assuming plenary responsibility in men and women under all circumstances; in refusing to recognise any abnormal state unless it were so extreme and obvious as to render the person before the court unconscious of his actions and surroundings, the judges were defending their own position. Thus the new theories[[760]] were disputed and sneered at, and arbitrary standards as to sanity were set up at variance with all facts and expert evidence.[[761]]
Some contended that the more subtle and amazing forms of madness or abnormality perceived by the specialists were but new names for old perversities.[[762]] Others averred that nothing physical ought to exculpate. Smollett wished that all lunatics guilty of grave offences might be subjected “to the common penalties of the law.” Upon this Mr. Tuke observes in comment that “The entire inability to distinguish between voluntary and involuntary acts, ... between motives and consequences, is singularly well shown. Unfortunately it was not peculiar to Smollett.”[[763]]
And I might add that this instinctive feeling continued—as everything instinctive generally does. Turning to the work of a writer still living (in 1908), we come upon the following: “Of late years a certain school of thinkers[[764]] ... have started some theories respecting the responsibility or irresponsibility of many dangerous criminals and murderers, which have very properly been objected to by more practical observers.” And the writer continues with all the sweet simplicity of ignorance: “Even the inmates of lunatic asylums know well the distinction between right and wrong. And it is precisely upon this knowledge that the government and discipline of such establishments are based. Hence no theories of criminal irresponsibility should be permitted to relax the security and strictness of the detention of dangerous offenders, whether sane, or partially insane, or wholly mad. And it is important to observe that the treatment and condition even of mad murderers should not be made attractive to others outside.” But the hard scientific facts persisted. Injustice and cruelty, practised upon the weak and helpless, do not, alas! and pace good Mrs. Stowe, bring down upon nations the visible wrath of God; but the manifest falseness of the old assumptions, and the continued failure of the mediæval methods, could not be hidden through unending years. Slowly the light of science began to penetrate into the dark places of punishment. The entirely mad were first rescued and treated as patients, and these now, happily, no longer concern us; their case belongs to Medicine, not to Criminology. With regard to the half-mad we are in a state of slow change and transition. Their wrongs, long known to the alienists, are being brought before the law-makers. “Crime,” says the Report of Mr. Secretary Gladstone’s Committee,[[765]] “its causes and treatment, has been the subject of much profound and scientific inquiry. Many of the problems it presents are practically at the present time insoluble. It may be true that some criminals are irreclaimable, just as some diseases are incurable, and in such cases it is not unreasonable to acquiesce in the theory that criminality is a disease and the result of physical imperfection. But criminal anthropology as a science is in an embryo stage....” With regard to the abnormal we are only on the threshold of justice; a multitude of causes, theological and instinctive, prevent the facts from being faced and known.
We may take comfort in the course of evolution; in that the violently mad (employing the word in a wide and general sense) are no longer exorcised and tormented; in that the eccentrically mad are no longer burned and tortured for what was imagined against them; in that the weak-minded and the partially deranged are being considered, with a view to their segregation in special places apart from healthy offenders; in that innate and absolute abnormality of emotions has been established by the specialists upon overwhelming evidence; and that the knowledge of this is quietly spreading, and being recognised and admitted among educated people, throughout the civilised world.
THE END
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FOOTNOTES FOR ALL CHAPTERS
[1]. “In the early cuneiform writing ... the symbol for a prison is a combination of the symbols for ‘house’ and ‘darkness.’”—Isaac Taylor, History of the Alphabet, p. 21. London, 1899.