The Criminal

by Havelock Ellis

The institution of the jury is well rooted in England, and on the whole very efficient. There is not likely to be any agitation for some time to come for its abolition, as there has been in Italy and France and Switzerland. But there is at all events one modification in our criminal courts which is urgently required. It is entirely opposed to the interests of justice, and therefore of society, that the scientific conclusions in a case should be thrust into a partisan position. Experts will often differ as lawyers often differ, but the lawyer is not more competent to decide on the science of the expert than the expert is competent to decide on the law of the lawyer. It is not for the interests of justice that one expert, representing perhaps only his own opinion, should weigh against another representing perhaps the general body of scientific opinion on that subject. It is not calculated for the ends of justice that the judge, however quick and intelligent, should have to pronounce on matters concerning which he can only speak as a layman, and necessarily falls into frequent errors of judgment. Special points involving special knowledge or skill must be submitted to a commission of experts, and the verdicts of the commission on these special points must be accepted by the court, though subject to an appeal to a supreme medico-legal tribunal. Some such method as this is now being widely demanded by intelligent opinion in the interests of justice. At the International Congress on Forensic Medicine, held in Paris in 1889, this tendency came out very clearly, and was formulated in the following proposition which the Congress adopted:—“To guarantee the interests of society and of the accused in all medico-legal investigations, at least two experts shall be employed. These shall be appointed by the judge.” It is to be hoped, in the interests of justice, that the pressure of public opinion will hasten the adoption of this reasonable and moderate reform in criminal procedure.

Our courts of justice are still pervaded by the barbaric notion of the duel. We arrange a brilliant tournament, and are interested not so much in the investigation of truth as in the question of who will “win.” We cannot hope for any immediate radical change in this method, but it is our duty to do all that we can to strengthen those elements in our courts which are concerned, not with the gaining of a cause, but with the investigation of truth. This and all other reforms in our methods of dealing with the criminal, as I have already pointed out, and would again insist, cannot be attained by a mere administrative fiat; nor is it desirable that they should be. Before any reform can be safely embodied in the law it must first be embodied in the popular consciousness. We need here, as in so many other fields of our social life, a strong body of intelligent and educated opinion. This must accompany that revival, under the inspiration of the methods of natural science, of that science of jurisprudence which is at present the most stationary and scholastic of all the sciences.

These problems are every day becoming more pressing. The level of criminality, it is well known, is rising, and has been rising during the whole of the present century, throughout the civilised world. In France, in Germany, in Italy, in Belgium, in Spain, in the United States, the tide of criminality is becoming higher steadily and rapidly. In France it has risen several hundred per cent.; so also for several kinds of serious crime in many parts of Germany; in Spain the number of persons sent to perpetual imprisonment nearly doubled between 1870 and 1883; in the United States the criminal population has increased since the war, relatively to the population, by one-third. There is, no doubt, room for fallacy in many of these statistics; various circumstances serve to modify such figures—a greater or less intolerance of crime, more or less success in capturing criminals, and variations in the methods of dealing with them. On the whole, however, there seems to be a general agreement that the increase is real.

Insular Great Britain alone appears to be relatively unsubmerged by the rising tide of criminality; but even here there is a real increase, in proportion to the population, in the more serious kinds of crime. Crimes of passion are rarer among the Anglo-Saxon race in England, Scotland, and America than anywhere else; but crimes of interest are proportionately more common than elsewhere. The decrease is in minor offences, and is due in large measure, no doubt, to reasons connected with the police. The anomaly of the comparative freedom of Great Britain from crime has been explained by foreign observers in several ways—by the former frequency of hanging and of transportation in England, thus eliminating a large number of criminals,[116] and by the firmness with which sentences are executed. It is probable that the great stream of emigration from Great Britain, carrying away much of the finest, but also much of the most turbulent elements (the two are often connected), has had a very marked influence in this respect.

Criminality, like insanity, waits upon civilisation. Among primitive races insanity is rare; criminality, in the true sense, is also rare. Conservatism and the rigid cult of custom form as distinct a barrier against crime as they do against progressive civilisation. As the methods of enlarging and multiplying the uses of our lives increase, so do the abuses of these methods. In an epoch of stress, and of much change and readjustment in the social surroundings and relations of individuals, ill-balanced natures become more frequent, and the anti-social and unlawful instincts are more often called out than in a stagnant society. The criminality of the Irish in England is far greater than that of the Irish at home, and it is a significant fact that while the Americans are more criminal than the English, the criminality of the English-born in the United States is more than double that of the native American whites. Like insanity,[117] criminality flourishes among migrants, and our civilisation is bringing us all more or less into the position of migrants.

But the problem of criminality is not thereby rendered hopeless. Rather it is shown to be largely a social fact, and social facts are precisely the order of facts most under our control. The problem of criminality is not an isolated one that can be dealt with by fixing our attention on that and that alone. It is a problem that on closer view is found to merge itself very largely into all those problems of our social life that are now pressing for solution, and in settling them we shall to a great extent settle it. The rising flood of criminality is not an argument for pessimism or despair. It is merely an additional spur to that great task of social organisation to which during the coming century we are called.

It is useless, or worse than useless, to occupy ourselves with methods for improving the treatment of criminals, so long as the conditions of life render the prison a welcome and desired shelter. So long as we foster the growth of the reckless classes we foster the growth of criminality. So long as there are a large body of women in the East of London, and in other large centres, who are prepared to say: “It’s Jack the Ripper or the bridge with me. What’s the odds?”[118] there will be a still larger number of persons who will willingly accept the risks of prison. “What’s the odds?” Liberty is dear to every man who is fed and clothed and housed, and he will not usually enter a career of crime unless he has carefully calculated the risks of losing his liberty and found them small; but food and shelter are even more precious than liberty, and these may be secured in a prison. As things are, the asylum and the workhouse, against which there is a deep prejudice, ingrained and irrational, would have a greater deterring influence than the prison. There are every morning at Paris 50,000 persons who do not know how they will eat or where they will sleep.[119] It is the same in every great city; for such the prison can be nothing but a home. It is well known that the lot of the convict, miserable as it is, with its dull routine and perpetual surveillance, is yet easier, less laborious, and far more healthy than that to which thousands of honest working men are condemned throughout Great Britain. The fate reserved for a French convict is one that might well be the reward of honesty. He is sent to New Caledonia, to marry, to settle, perhaps to become rich. “I do not know,” an ex-deputy, sent out to report on the condition of the convicts, is said to have declared, “any struggling peasant or small proprietor in France who would not gladly exchange his lot for that of a convict of the first class in New Caledonia.” “The working classes,” as Professor Prins, one of the most able and thoughtful students of this subject, remarks, “badly housed, badly nourished, vegetate at the mercy of economic crises.[120] The worker is always on the borders of vagabondage; the vagabond is always on the borders of crime. The entire working classes are thus exposed in the first line, and whether it is a question of disease or of crime, it is they who succumb first.”[121] Crime would be much commoner than it is if it were not for the communistic practice of mutual helpfulness which rules so largely among the poorest classes, and mitigates the stress of misery. All the more thoughtful students of the criminal, among whom Ferri in this respect stands first, have seen the direct bearing on criminality of what Colajanni has called Social Hygiene. We may neglect the problems of social organisation, but we do so at our peril.

It was at one time thought that the great panacea for the prevention of crime was education. Undoubtedly education has an important bearing on criminality, but we now know that the mere intellectual rudiments of education have very little influence indeed in preventing crime, though they may have a distinct influence in modifying its forms. Such education merely puts a weapon into the hands of the anti-social man. The only education that can avail to prevent crime in any substantial degree must be education in the true sense, an education that is as much physical and moral as intellectual, an education that enables him who has it to play a fair part in social life. The proportion of criminals with some intellectual education is now becoming very large; the proportion of criminals who are acquainted with any trade still remains very small; the proportion of criminals engaged in their trade at the time of the crime is smaller still. We seem to be approaching a point at which it will become obvious that every citizen must be educated to perform some useful social function. In the interests of society he must be enabled to earn his living by that function. If we close the social ranks against him he will enter the anti-social ranks, and the more educated he is the more dangerous he will then become.

All education must include provision for the detection and special treatment of abnormal children. We cannot catch our criminals too young. Taverni has found that criminals in childhood are marked especially by their resistance to educative influences. It is our duty and our interest to detect such refractory and abnormal children at the earliest period, to examine them carefully, and to ensure that each shall have the treatment best adapted to him. It is much easier, and much cheaper, to do that, than to wait until he has brought ruin on himself and shame on his friends. This is beginning to be recognised and acted upon in those countries that are most alive to the meaning of education; in Sweden, for instance, there is a careful medical supervision of schools, by medical officers who are not subordinate to the teachers, although this supervision is confined to the physical condition and capacities of the child. It is indispensable, if we are to deal effectually with the criminal, that we should be able to refer to the record of his physical, mental, and moral dispositions during childhood. In England recently a committee, consisting of the most eminent medical men specially qualified for the task, was appointed to examine into the condition of children in primary schools. This committee, owing chiefly to the enthusiasm and labour of Dr. Francis Warner, accomplished much valuable work, but the London School Board refused to allow any access to its schools. The London School Board consists, one may suppose, of intelligent persons, genuinely interested in education, and representing the sense of the community, yet they refused to consider one of the most serious problems that the educator has to face. So true it is that every society has only the criminals that it deserves.

While a wise modification of the educative influences is here of the greatest importance, we must not forget that to a very large extent the child is moulded before birth. There is no invariable fatalism in the influences that work before birth, but it must always make a very great difference whether a man is well born and starts happily, or whether he is heavily handicapped at the very outset of the race of life; whether a man is born free from vices of nature, or buys freedom, if at all, at a great price. There is evidence to show how much of the welfare of the child depends on the general physical and emotional health of the parents, and that the child’s fate may be determined by some physical weakness, some emotional trouble at conception or during pregnancy. No legislation can step in here, save at the most very indirectly. We can, however, quicken the social and individual conscience. The making of children is the highest of all human functions, and that which carries the most widespread and incalculable consequences. It is well to remember that every falling away from health, every new strain and stress, in man or woman, may lay an additional burden on a man or woman yet unborn, and perhaps wreck a life or a succession of lives.