It is much to be able to see, even so clearly as we do to-day, the human classes of arrested or perverted development who lie in the dark pool at the foot of our social ascent. Even our present knowledge is sufficient to serve as the justification for a certain amount of social action. We owe this to the labours of a succession of physiologists, alienists, anthropologists, and criminologists during the past century.
Up to recent times the criminal has been regarded as a kind of algebraic formula, to use Professor Ferri’s expression; the punishment has been proportioned not to the criminal but to the crime. We are now learning to regard the criminal as a natural phenomenon, the resultant of manifold natural causes. We are striving to attain to scientific justice. We are seeking in every direction to ascertain what is the reasonable treatment of the eccentric and abnormal members of society, in their interest, and in the still higher interests of the society to which we belong.
To seek for light in the fields of biology and psychology, of anthropology and sociology, has seemed to many a discouraging task. The results are sometimes so obscure; sometimes, it even seems, contradictory. In practice, it is said, such considerations count for nothing. Law must only concern itself with absolute certainties, with abstract formulæ, with geometrical routine. But human nature will not fit in with formulæ; when men and women are geometrical figures, an abstract legal system will answer all their needs. If the path lies through a jungle, what is the use of the best and straightest of roads that leads astray? If a critic were to point out to a biologist—to take another illustration from Ferri—the limitations of the microscope, he would be entitled to reply—But excuse me, however imperfect the microscope may be, would it be better to dispense with the microscope? Much less when we are dealing with criminals, whether in the court of justice or in the prison, or in society generally, can we afford to dispense with such science of human nature as we may succeed in attaining.
CHAPTER VI.
THE TREATMENT OF THE CRIMINAL.
If, as now scarcely admits of question, every truly criminal act proceeds from a person who is, temporarily or permanently, in a more or less abnormal condition, the notion of “punishment” loses much of its foundation. We cannot punish a monstrosity for acting according to its monstrous nature. Moreover, who among us is perfectly normal, and what tribunal is entitled to punish? The verdict of science is one with that of Christianity—“Judge not.”
Some such argument as this has weighed with those thinkers and investigators who have of late shown a disinclination to talk of punishment, and have instead spoken of the “social reaction against crime.” The old conception of punishment was founded on the assumption of the normality of the criminal; he was a normal person who had chosen to act as though he were not a normal person—a vine, as it were, that had chosen to bring forth thorns—and it was the business of the penologist to apportion the exact amount of retribution due to this extraordinary offence, with little or no regard to the varying nature of the offender; he was regarded as a constant factor. Lord Chief Justice Coleridge, not many years ago, “when addressing,” says the Rev. J. W. Horsley, “in our hearing, an assemblage of those who had all belonged to the criminal class, expatiated, somewhat to their astonishment and much to their gratification, on the iniquity of giving a severe punishment for a theft that was petty, even though it had been preceded by many thefts and convictions.” Obviously the punishment was directed at the offence; it was not necessary to consider the offender at all. This conception, formulated by theorists who delighted in abstract notions, has been shown to lead directly into devious paths of metaphysics and ethics; it has, consequently, been fertile of much vain disquisition. On the whole, the results of this have not contributed to confirm the credit of the notion, and it has seemed better—at once sounder theoretically and more convenient practically—to dispense with this antiquated conception of punishment. Whenever one person trespasses on the rights of another person, or of the community to which he belongs, there is an inevitable social reaction against the person who has committed the anti-social deed. Society says to the individual who has violated its social feelings—Here, my fine fellow, we are not going to stand this conduct of yours; we must have an end of this: and it proceeds to act in accordance with the varying measure of its wisdom. This is the basis of all legal action against the criminal; in its crudest form it is Lynch law; in its highly developed form it shows itself in the elaborate training bestowed on the criminal at Elmira. Such social action is a solid and permanent fact, independent of all metaphysical theories; and it is this we are concerned with when we approach the question of the treatment of the criminal.
At a very early period in the development of every barbarous race there arise two institutions for dealing with the criminal—the prison and another, still more decisive, appearing in various forms, the cross, the stake, the gallows, the axe.