Section 92. (b) Heredity.[304]
However important the question of heredity may be to lawyers psychologically, its application to legal needs is impossible. It would require, on the one hand, the study of all the literature concerning it, together with the particular teachings of Darwin and his disciples, and of Lombroso and his. The criminal-psychological study of it has not yet been established. The unfounded, adventurous, and arbitrary assertions of the Lombrosists have been contradicted, especially through the efforts of German investigators. But others, like Debierre in Lille, Sernoff in Moscow, Taine, Drill, Marchand have also had occasion to controvert the Italian positivists. At the same time, the problem of heredity is not dead, and will not die. This is being shown particularly in the retort of Marchand concerning the examinations he made with M. E. Koslow, in the asylum for juvenile offenders founded by the St. Petersburg Anthropological Society. Between Buckle, who absolutely denies heredity, and the latest of the modern doctrines, there are a number of intermediate views, one of which may possibly be true. There is an enormous literature which every criminalist should study.[305]
Nevertheless, this literature can tell us nothing about the legitimacy of the premise of heredity. Every educated man still believes Darwin’s doctrines, and the new theories that seek to emancipate themselves from it do so only by pushing them out of the big front door, and insinuating them through the little back door. But according to Bois-Reymond Darwinism is only the principle of the hereditary maintenance of the child’s variation from its parents. Everybody knows of real inherited characters, and many examples of it are cited. According to Ribot, suicide is hereditary; according to Despine, kleptomania; according to Lucas, vigorous sexuality; according to Darwin, hand-writing, etc. Our personal acquaintances show the inheritance of features, figure, habits, intellectual properties, particularly cleverness, such as, sense of space and time, capacity for orientation, interests, diseases, etc. Even ideas have their ancestors like men, and we learn from the study of animals how instincts, capacities, even acquired ones, are progressively inherited. And yet we refuse to believe in the congenital criminal! But the contradiction is only apparent.
A study of the works of Darwin, Weismann, DeVries, etc., shows us indubitably that no authority asserts the inheritance of great alterations appearing for the first time in an individual. And as to the inheritance of acquired characteristics, some authorities assert this to be impossible.
Until Darwin the old law of species demanded that definite traits of a species should not change through however long a period. The Darwinian principle indicates the inheritance of minute variations, intensified by sexual selection, and, in the course of time, developed into great variations. Now nobody will deny that the real criminal is different from the majority of other people. That this difference is great and essential, is inferred from the circumstance that a habit, a single characteristic, an unhappy inclination, etc., does not constitute a criminal. If a man is a thief it will not be asserted that he is otherwise like decent people, varying only in the accidental inclination to theft. We know that, besides the inclination to theft, we may assign him a dislike for honest work, lack of moral power, indifference to the laws of honor when caught, the lack of real religion,—in short, the inclination to theft must be combined with a large number of very characteristic qualities in order to make a thief of a man. There must, in a word, be a complete and profound change in his whole nature. Such great changes in the individual are never directly inherited; only particular properties can be inherited, but these do not constitute a criminal. Hence, the son of a criminal need not in his turn be a criminal.
This does not imply that in the course of generations characters might not compound themselves until a criminal type is developed, but this is as rare as the development of new species among the animals. Races are frequently selected; species develop rarely.
Section 93. (c) Prepossession.
Prepossession, prejudice, and anticipatory opinion are, perhaps, the most dangerous foes of the criminalist. It is believed that the danger from them is not great, since, in most cases, prepossession controls only one individual, and a criminal case is dealt with by several, but this proves nothing. When the elegant teacher of horseback riding has performed his subtlest tricks, he gracefully removes his hat and bows to the public, and only at that moment does the public observe that it has been seeing something remarkable and applauds heartily, not because it has understood the difficulty of the performance, but because the rider has bowed. This happens to us however good our will. One man has a case in hand; he develops it, and if, at the proper time, he says “Voilà,” the others say, “Oh, yes,” and “Amen.” He may have been led by a prepossession, but its presence is now no longer to be perceived. Thus, though our assumptions may be most excellently meant, we still must grant that a conviction on false grounds, even when unconsciously arrived at, so suffuses a mind that the event in itself can no longer be honestly observed. To have no prejudices indicates a healthy, vigorous mind in no sense. That is indicated by the power to set aside prejudices as soon as their invalidity is demonstrated. Now this demonstration is difficult, for when a thing is recognized as a prejudice, it is one no longer. I have elsewhere,[306] under the heading “anticipatory opinion,” indicated the danger to which the examining justice is subject thereby, and have sought to show how even a false idea of location may lead to a prepossession in favor of a certain view; how vigorous the influence of the first witness is, inasmuch as we easily permit ourselves to be taken in by the earliest information, and later on lack time to convince ourselves that the matter may not be as our earliest advice paints it. Hence, false information necessarily conceals a danger, and it always is a matter of effort to see that the crime is a fictitious one, or that something which has been called accident may conceal a crime. The average man knows this well, and after a brawl, after contradictory testimony, etc., both parties hurry to be beforehand in laying the information. Whoever lays the information first has the advantage. His story effects a prepossession in favor of his view, and it requires effort to accustom oneself to the opposite view. And later it is difficult to reverse the rôles of witness and defendant.
But we have to deal with prepossession in others besides ourself, in witnesses, accused, experts, jury, colleagues, subordinates, etc. The more we know, the newer new things seem. Where, however, the apperceptive mass is hard and compact, the inner reconstruction ceases, and therewith the capacity for new experiences, and hence, we get those judges who can learn nothing and forget nothing. Indefiniteness in the apperceptive masses results in the even movement of apperception. Minds with confused ideational complexes hit little upon the particular characteristic of presented fact, and find everywhere only what they have in mind.