Lacenaire.
In a less crude form, and among persons who lay claim to a somewhat higher degree of culture, the same veneration has long existed and still exists. Appert, writing immediately after the execution of Lacenaire at Paris, says:—“His portraits were displayed on quays and boulevards. From all sides exquisite meats and delicate wines reached his cell, while, two steps away, miserable creatures driven to crime by hunger ate the black and hard bread of the gaol. Every day some man of letters visited him, carefully noting his sarcasms, his phrases composed in drunkenness or studiously calculated for effect; women, young, beautiful, and elegantly attired, solicited the honour of being presented to him, and were in despair at his refusal; a noble countess, the mother of a family, addressed verses to him, and drew upon herself a reply at which no doubt she blushed. He himself mocked at the infatuation he excited. ‘They come to me,’ he said, ‘as they would ask a ticket from M. Geoffroy Saint-Hilaire to see the elephants’ den.’” When Cartouche was in prison he was visited by many distinguished ladies and overwhelmed by their attentions. The Abbé Crozes tells us that Tropmann, the brutal murderer, when in prison received a great number of letters from ladies, full of anxiety in regard to his spiritual welfare, and asking for the most minute details concerning him. Some of these letters were reproduced in the Figaro. I have not seen them, but Dr. Corre says: “Their perusal stupefies one; they witness, among women who have been well brought up, to an ill-defined obsession, of the nature of which they are even themselves unaware, and which perhaps had its origin in an unavowable sentiment of love, born of mystery and the unknown.” It is not only women in whom this ancient worship of the criminal still survives. In a recent newspaper I read concerning a murderer: “One of the saddest sights we have ever witnessed was the prison van going along Waterloo Place at midnight under the beautiful moonlight with a great crowd running after it cheering loudly the poor wretch within—cheering that never ceased till the van disappeared inside the prison gate. The crowd was composed chiefly of young men, many of them well dressed, and not a few accompanied by their sweethearts. The scene suggested a convoy by the students of a favourite singer rather than that by the youth of even the lowest class in Edinburgh of a brutal murderer of a harmless English gentleman.” And, again, in another newspaper: “On Monday many visitors were in Seaham for Bank Holiday and the flower show. Those who visited the cavern where the girl is supposed to have been murdered were ten times more numerous than those who went to the flower show. Nearly all were strangers to the town, and had journeyed thither for the express purpose of viewing the scene of the tragedy. Many took a memento of some sort, either a chipping of rock, a pebble, or a stone from the cave. Some went so far as to take water from the pool where deceased was found, away with them in bottles.”
It is well known that when a woman has murdered her husband it is by no means unusual for a number of letters to be sent to her, before the issue of the trial is known, containing offers of marriage.
It is not possible to regard the criminal as a hero or a saint after we have once seriously begun to study his nature. He is simply a feeble or distorted person to whom it has chanced—most often, perhaps, from lack of human help—to fall out of the social ranks. It is as unreasonable and as inhuman for a whole nation to become excited over him, and to crave for the minutest details concerning him, as we now deem it to expose the miseries of any other abnormal person—man of genius or idiot, leper or lunatic—to the general and unmerciful gaze. Not that any of these may not be studied; they must be studied, but not delivered over to unrestrained curiosities, sentimentalities, cruelties. No external force can change this attitude; no censorship of newspapers will avail. Only the slow influences of education, and a rational knowledge of what criminality means, can effect a permanent change. But until this has been effected, one of the most fertile sources of crime, what has been well called the contagion of crime, will remain, as it is to-day, a danger in all civilised countries, a danger which is suggesting heroic remedies. The minute details of every horrible crime are to-day known at once by every child in remotest villages. The recital of it stirs up all the morbid sedimentary instincts in weak and ill-balanced natures; and whenever a large community grows excited over a crime, that community becomes directly responsible for a whole crop of crimes, more especially among young persons and children.[113]
We have, then, to reform our emotional attitude towards the criminal. On the other hand, we have yet something to do in reforming our rational attitude towards crime. “There are no crimes; there are only criminals.” That saying of Lacassagne’s indicates the direction in which practical changes must develop. “All progress in penal jurisprudence,” as Salillas well says, “lies in giving consideration to the man.” The question of legal methods, criteria, and tribunals is one of considerable importance from this point of view, and it is one to which sufficient attention has not yet been given. It is unfortunate that, in this country at all events, there seems to be a tendency to antagonism or divergence between, on the one hand, the medical and scientific side and, on the other, the judicial and executive side in the treatment of the criminal.[114] Whether this divergence is due chiefly to the lawyers or to the doctors is not quite clear, but it is essential that it should come to an end. Both lawyers and doctors exist for the sake of society, and are the servants of society; society, in its own interests, must see to it that they agree quickly. But so long as society allows antiquated laws and methods to prevail, there must be disagreement—disagreement which is disastrous to social interests. We need, before everything else, an enlightened public opinion.
A question which is constantly arising, and constantly leading to direct divergence between the exponents of science and the exponents of law, is the question of insanity. Under existing conditions it is frequently a matter of some moment whether a criminal is insane or not. Now whether a man is insane or not is largely a matter of definition. Even with the best definition we cannot always be certain whether a given person comes within the definition, but it is still possible to have a bad definition and a good definition. The definition which lawyers in England are compelled to accept is of the former character. The ruling still relied on is that of the judges in the MacNaghten case, many years ago: “That to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.” That this metaphysical and unpractical test will not do has been clearly recognised by some of the most eminent lawyers, who are quite in agreement with medical men. “The test of insanity which commends itself to medical men,” says Sir J. Crichton-Browne, “was never more clearly and succinctly expressed than by Lord Bramwell when in the Dove case he asked, ‘Could he help it?’ Could he help it? That is the real practical question at issue in any case in which the defence of insanity is set up.”[115] It should be added that Lord Bramwell has not always been able to maintain this position. “It ought to be the law of England,” says Mr. Justice Stephen, a very great authority, “that no act is a crime if the person who does it is at the time when it is done prevented by defective mental power, or by any disease affecting his mind, from controlling his conduct, unless the absence of the power of self-control has been produced by his own default.” A reasonable doctrine to lay down, no doubt, and one which medical men generally would accept; but one asks oneself at once: How many persons guilty of serious crimes—the only class in regard to whom the question is of practical importance—are to be counted sane?
The point on which we must fix our attention, however, is that it should make so much difference whether a criminal is insane or not. Our law is still in so semi-barbaric a condition that the grave interests of society and of the individual are made to hinge on a problem which must often be insoluble. Practically it cannot make the slightest difference whether the criminal is sane or insane. Sane or insane, he is still noxious to society, and society must be protected from him. Sane or insane, it is still our duty and our interest to treat him humanely, and to use all means in our power to render him capable of living a social life. Under any system, at once fairly humane and fairly rational, the question of insanity, while still of interest, can make little practical difference, either to society or to the criminal. It is unreasonable and anti-social to speak of insanity as a “defence.” It is an explanation, but, from the social point of view, it is not a defence. Suppose we accept the definition of insanity which, as we have seen, is now widely accepted by medical men and favoured by many eminent lawyers, that insanity is a loss of self-control, the giving way to an irresistible impulse. It cannot be unknown to any one that self-control may be educated, that it may be weakened or strengthened by the circumstances of life. If we define insanity as a loss of self-control and accept that as a “defence,” we are directly encouraging every form of vice and crime, because we are removing the strongest influence in the formation of self-control. When a “defence” of kleptomania was brought before an English judge in a case of theft he is said to have observed: “Yes, that is what I am sent here to cure.” We need not hesitate to accept this conception of the function of the court, provided always that the treatment is scientific, effectual, and humane.
The fact that to-day it is not so, and that lawyers and doctors are helpless to make it so, is a glaring proof of the necessity which exists for society, in its own interests and in those of its weaker members, to take intelligent cognisance of these matters, and to pave the way for reasonable action. In the first chapter of this book I noted, without calling any special attention to it, the curiously divergent way in which somewhat similar cases were treated. One girl was treated kindly and sent to a clergyman’s house: she “recovered.” Little Marie Schneider was sent to prison for eight years, the years during which she will develop into a woman. What will she be fit for when she comes out at the age of twenty? She may come out a human tigress, or merely the crushed and helpless product of prison routine. In either case what intelligent principle guided the society that condemned her to spend those eight years in prison? The lad who killed his little sister was sent to penal servitude for ten years. What will he be good for when he comes out? “In any case,” as Dr. Savage remarks, “the boy is pretty certain to end his days either as a lunatic or a confirmed criminal, and I fancy the best course has been taken to make him the latter. So society will suffer the more, and the boy himself will be none the better.”
These problems are unknown to the law, but they are beginning to stir among the community. A girl of twelve not long since murdered a child of four, as she herself subsequently confessed, in much the same manner as Marie Schneider murdered Margarete Dietrich. The jury acquitted her. They acted in defiance of the evidence and of the law. It is clear that what they said to themselves was this: The law will send this girl to prison for some ten or fifteen years. We do not believe in the advantage of that, and we prefer to deliver her from the law altogether. They were, as the judge said, a very merciful jury. But it is not by shuffling evasions of law that civilisation progresses. We need just and reasonable laws, not merciful juries. It is not to the advantage of society that young murderesses should wander at large, though it may very possibly be better than throwing them into the prison as at present constituted. The “merciful” jury, as in the south of Italy, becomes the hysterical and too often venial jury. We cannot be too grateful for the courage and honesty with which, as a rule, English juries and judges fulfil their functions; it is to this adherence to law that many intelligent foreign observers attribute the fact that criminality in England is in some respects less serious than one might be led to expect. If, however, this attitude is to be maintained, and we are to avoid the dangers of lying and cowardly verdicts, we must see to it that our law keeps pace with our knowledge and with our methods of social progress.