It may be said--to sum up our brief discussion of this large question of women’s criminality--that certain great barriers, partly artificial, partly natural, have everywhere served to protect women from crime. It is not possible absolutely to prove this conclusion, because women cannot be put strictly under the same conditions as men; a woman who lived under the same conditions as men, it need scarcely be said, would no longer be a woman. But it is made probable by the considerations here brought forward, and by statistics. Thus let us take the statistics for one year in a country where crime is so largely developed, and so carefully studied as Italy; an average year, 1886, may be selected. It will be found that a hundred condemned persons of each sex may be arranged according to age as follows:-- Thus below puberty the relative criminality of girls is rather greater than that of boys, to become about equal at puberty; then during the earlier and chief period of child-bearing the criminality of women falls suddenly, becoming level with that of men at about the time of the cessation of the child-bearing period; after this the criminality of women becomes relatively much greater than that of men, becoming again about the same, and in some years exceeding it, at the age of 70.
(_d_) One is inclined on first approaching the subject to make the clear line of demarcation between crime and vice, which is necessary in practical life. From the anthropological point of view, however, it appears on closer examination impossible to draw this clear line.
In the course of Lombroso’s investigations he was surprised to find in the examination of supposed normal persons certain individuals who presented in a marked form those anthropologic signs of a low and degenerate type which he had usually found among criminals. On further inquiry it appeared that those individuals were of vicious character. Again, it is a remarkable fact that prostitutes exhibit the physical and psychic signs associated usually with criminality in more marked degree than even criminal women. While criminal women correspond on the whole to the class of occasional criminals, in whom the brand of criminality is but faintly seen, prostitutes correspond much more closely to the class of instinctive criminals. Thus their sensory obtuseness has been shown to be extreme, and it is scarcely necessary to show that their psychical sensitiveness is equally obtuse. Several valuable series of observations recently made on prostitutes in Italy and elsewhere have brought out interesting results in this respect. Thus, for example, Dr. Praskovia Tarnovskaia examined at St. Petersburg fifty prostitutes who had been inmates of a brothel for not less than two years, and she also examined, for the sake of comparison, fifty peasant women of so far as possible the same age and intellectual development. She found (1) that the prostitutes presented a shortening, amounting to half a centimetre, of the anterior, posterior, and transverse diameters of skull; (2) 84 per cent. showed various signs of physical degeneration--irregular skull, asymmetry of face, anomalies of hard palate, teeth, ears, etc.; (3) 82 per cent. had parents who were habitual drunkards; (4) 18 per cent. were the last survivors of a large family of eight to thirteen children who had died early. Prostitutes may fairly be compared to the great class of vagabonds among men, who also live on the borderlands of criminality, and who also present a larger proportion of abnormalities than even criminals. Dugdale, in his valuable and thorough study of the “Jukes” family of criminals in America, shows that while the eldest sons in a criminal family carry on the criminal tradition, the younger sons become paupers or vagabonds, and the sisters become prostitutes. Of 250 recidivists condemned five times at Paris nearly all have begun by vagabondage. Mendel has examined 58 vagabonds in the workhouse at Berlin. He found 6 absolutely mad; 5 weak-minded; 8 epileptics; 14 with serious chronic disease; in the remaining 25 there was without exception pronounced mental weakness. We see here the organic root of the hopelessly idle, vicious character of the vagabond class. A philanthropic gentleman at Paris offered employment of various kinds, with payment at four francs a day, to all those who came to him complaining that they were dying of hunger and could get no work. 545, out of 727, did not even present themselves; some came and disappeared after the first half-day, having claimed their two francs; only 18, or 1 in 40, continued to work. It is not sufficiently known that these poor creatures, who form such an extensive recruiting field for crime, are already, by the facts of their physical organisation, cut off from the great body of humanity. They need much more intelligent treatment than the antiquated workhouse is able to supply.
We must be careful not to confuse vice and crime. At the same time we have to recognise that they both spring from the same root. The criminal is simply a person who is, by his organisation, directly anti-social; the vicious person is not directly anti-social, but he is indirectly so. The criminal directly injures the persons or property of the community to which he belongs; the vicious person (in any rational definition of vice) indirectly injures these. They are both anti-social because they are both more or less unfitted for harmonious social action, both, from organic reasons, more or less lazy. Criminals and prostitutes, as Féré remarks, have this common character, that they are both unproductive. This is true also of vagabonds, and of the vicious and idle generally, to whatever class they belong. They are all members of the same family.
(_e_) We saw in Chapter I. that there is a fairly well-marked class of professional criminals. They are the _élite_ of the criminal groups; they present a comparatively small proportion of abnormalities; their crimes are skilfully laid plots, directed primarily against property and on a large scale; they never commit purposeless crimes, and in their private life are often of fairly estimable character. They flourish greatly in a civilisation of rapidly progressing material character, where wild and unprincipled speculation is rife, as in the United States; their own schemes have much of the character of speculations, with this difference, that they are not merely unprincipled but are against the letter of the law; notwithstanding the ability and daring they require, they are a relatively unskilled kind of speculation.
Tarde, and perhaps one or two writers following him, have endeavoured to show that all crime is professional, and that every physical and psychic characteristic of the criminal may be explained by the influence of profession. Tarde’s always alert and intelligent advocacy makes it necessary to take note of this position, although in this unqualified shape it has not met with much adhesion at the hands of scientific investigators. I am persuaded, he says, that every large social class has its own characteristics. “If one examined hundreds or thousands of judges, lawyers, labourers, musicians, taken at random and in various countries, noting their different characters, craniometric, algometric, sphygmographic, graphologic, photographic, etc., as Lombroso has examined hundreds and thousands of criminals, it is extremely probable that we should ascertain facts not less surprising; thus, for instance, we might succeed in finding _instinctive lawyers_--born to defend instinctive criminals...I should like to see the instinctive criminal opposed to the instinctive man of science, or the religious man, or the artist. It would be curious to see him compared to the moral man, and to learn if the latter is the antipodes of the criminal physically as well as morally.”[84] Tarde has again more recently stated his position: “One knows that at the first glance at a woman a skilful observer infallibly divines her habits of prostitution...Among the innumerable varieties of human nature which appear at the surface of a race and proceed perhaps from its lowest depths (for the variations of a theme are, I believe, its true _raison d’être_, and not _vice versâ_), every social or anti-social profession operates a selection to its own profit; it attracts the organisms most adapted to the kind of life which it leads, and to the end which it pursues, so that if one submitted to anthropometric measurement lawyers, doctors, priests, merchants, especially those who have the most decided vocation for their profession, we should not fail to find for each category the proportional preponderance of a certain number of peculiarities, morphologic or physiologic, elsewhere in less proportion. It must inevitably be so whether a career is open to every one or shut up as a caste, for in the latter case hereditary accumulation of acquired aptitudes from the use of the same functions transmitted from generation to generation produces an analogous effect, even with superior intensity.”[85] The recent investigations of Bertillon at the Paris Prefecture of Police have shown that by large photographs of the hand it is possible to detect the worker at a large number of crafts. By such acquirement as this, as well as by a process of natural selection, the men of every class develop a special set of psychic and physical peculiarities; thus Tolstoï, in his _Death of Ivan Ilyitch_, has admirably described the special attitude and manner common to professional men generally, and in this general professional class there are subdivisions, so that every professional man instinctively recognises his fellows. It is so among criminals. Mr. Davitt sketches, for instance, the special class of “hooks,” or professional pickpockets, “so well outlined in gait, constant use of slang, furtive looks, almost total want of tact in their ordinary conduct, with an instinctively suspicious manner in almost all their actions, that they are as easily distinguishable from the other criminals of a prison as they are recognisable to their constant pursuers, the police, when abroad in the world.”
If we were to look at the matter in a rather more thorough and scientific manner, there can be no doubt that the previsions of Tarde would be justified, and that men would fall into certain natural anthropologic groups, according to their habitual modes of feeling and thinking and acting, the nature of each person, to some extent, “subdued to what it works in, like the dyer’s hand.” In each class there would be different degrees in sensory perception, in cranial shape and size, in muscular development. Such investigations will no doubt be systematically carried out in time. At present, owing to the extraordinary apathy of anthropologists, and consequently the general indifference to the importance of studies connected with the development and varieties of men, scarcely anything is known regarding the matter.
But important as professional selection is, it cannot account for everything. Indeed no serious attempt has been made to substantiate it by reference to the details of criminal anthropology. M. Tarde is a magistrate; no scientific man would have attempted to account for all the facts that have now accumulated by professional selection and acquired habits.
It is interesting to note that Topinard, the distinguished anthropologist, who has bestowed some severe and not unmerited criticism on portions of Lombroso’s work,[86] while accepting the professional theory of crime, by no means considers that it is sufficient to explain the whole of the facts; remembering the teaching of Lélut and Baillarger, under whom he had studied mental disease, he calls in the aid of the morbid element:--“Criminals constitute a special professional category in society, in the same way as men of letters, men of science, artists, priests, the labouring classes, etc., but a complex category in which the most diverse elements enter: the insane or those predisposed to insanity, epileptics and those predisposed to epilepsy, the alcoholic, the microcephalic, the macrocephalic, those predisposed by some vice of organisation or of development, anterior or posterior to birth, betraying itself sometimes by very evident anatomical anomalies, those who are predisposed by family traditions and inclinations, those whose moral instincts are perverted by individual education and social environment, and finally those who are criminals by accident, without preparation or predisposition.”[87] Professional characters will carry us a long way when we are seeking to account for natural social groups. But in the anti-social groups another and more morbid element enters. It is indeed largely the presence of morbid elements which gives these groups their anti-social character.
(_f_) The morbid element in criminality has sometimes been too strongly emphasised, but it would be idle to attempt to deny its importance. The frequency with which insanity appears among criminals, even when the influence of imprisonment may with considerable certainty be excluded, is well ascertained. Of recent years also the close connection between criminality and epilepsy and general paralysis has often been shown. I have several times pointed out that the resemblances between criminals considered as a class and the insane so considered are by no means great; at many points they are strongly contrasted. The resemblances with epileptics, on the other hand, are anthropologically very marked, as Lombroso was the first to point out in detail. He has also observed that those regions of Italy which produce most epileptics produce also most criminals. Epilepsy has a certain relationship to insanity; it tends naturally to weak-mindedness, although some of the world’s greatest men have been epileptics; and there is in epilepsy a tendency to the development of brutal, unnatural, and bloodthirsty instincts. The slighter and more concealed forms of epilepsy offer also a very fruitful field for investigation in this respect.[88] But the roots of criminality are not only deeper than professionalism, they are deeper also than any merely acquired disease. I have frequently had occasion to note the remarkable resemblances between criminals and idiots. There is the same tendency to anatomical abnormalities of the muscles, arteries, bones, etc.; in both the muscular system is weak; there is the same tendency also to small and weak hearts, with valvular defects. There is, again, the same sensory obtuseness, with the same exception in the case of sight, which is remarkably good, with rarity, it seems, of colour-blindness. Criminality, like idiocy, tends to run in the line of the eldest sons, and in both the hereditary influences are frequently bad. Cranial asymmetry is common in idiots as well as among criminals; and while meningitis is a common cause of idiocy, such evidence as we possess shows that it is also common in criminals. Tubercular disease is again common in both. Epilepsy, to which so much importance has of late been attached in connection with criminality, is notoriously common among idiots, being found among nearly 25 per cent.[89] The relations of criminality to idiocy have not yet been sufficiently studied.
The criminal is, however, by no means an idiot. He is not even a merely weak-minded person. The idiot and the feeble-minded, as we know them in asylums, rarely have any criminal or dangerous instincts. Another term is frequently used to denote vicious or criminal instincts in a person who is, mentally, little if at all defective; he is said to be “morally insane.”
The term “moral insanity” was originated nearly half a century ago by an Englishman, Dr. Prichard, who in his _Treatise on Insanity_ declared that insanity exists sometimes with an apparently unimpaired state of the intellectual faculties; and the conception has been developed by Krafft-Ebing, Maudsley, and many others. The term itself is an unfortunate one; the condition described by no means falls in easily as a subdivision of insanity, and it is moreover frequently of a congenital character. There is now a very general tendency to drop the expression “moral insanity,” and to speak instead of “moral imbecility.”
The condition in question, by whatever name it is called, is described by alienists as an incapacity to feel, or to act in accordance with, the moral conditions of social life. Such persons, it has been said, are morally blind; the psychic retina has become anæsthetic. The egoistic impulses have become supreme; the moral imbecile is indifferent to the misfortunes of others, and to the opinions of others; with cold logic he calmly goes on his way, satisfying his personal interests and treading under foot the rights of others. If he comes in contact with the law then his indifference changes into hate, revenge, ferocity, and he is persuaded that he is in the right. Although so defective on the moral side, these persons are well able to make use of the abstracted intellectual conceptions of honour, morality, philanthropy; such words are indeed frequently on their lips, and it is quite impossible to convince them of the unusual character of their acts. They are absolutely and congenitally incapable of social education, systematically hostile to every moralising influence. Being themselves morally blind, it is their firm conviction that all others are in the same condition; they disbelieve in the possibility of virtue, and being often possessed of considerable intellectual ability, maintain anti-social theories with much skill.
“Moral insanity” does not probably stand for any definite morbid condition. It is used as a convenient term to describe a certain group of psychic symptoms which are not found in a developed condition in the normal man. It is obvious that these symptoms closely resemble those we have already described as characterising the criminal in his most clearly-marked form--the instinctive criminal. The morally insane person has been identified with the instinctive criminal by Lombroso, Marro, Ferri, Benedikt, Colajanni, and many others. The fusion has, however, been rejected by some--by Binswanger and Kraepelin, for instance. There can, however, be little doubt that the two groups overlap in very large part.
The group of instinctive criminals therefore still stands fairly apart among the other groups of criminals, approximating, but not fusing with, these various morbid and atypical groups. The outlines blend, but each group is distinct at the centre. It will be the work of the future to arrange, and if necessary to re-form, these various groups.
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.
I do not propose to give more than a few words to the question of capital punishment, because it does not seem to be any longer a question of much magnitude or importance. A century, even three-quarters of a century, ago it was a different matter. In England especially capital punishment seems to have flourished luxuriantly. A writer in Elizabeth’s reign says that in Henry VIII.’s time seventy-two thousand thieves and vagabonds were hanged. The statement is set down on hearsay evidence only, but is sufficient to show that the number must have been very large. About a century ago more criminals, it is said, were put to death in England than in any other part of Europe; many persons still living remember the days of wholesale hanging, and even the execution of a child of twelve for rioting. It is less than half a century since a child of nine was condemned to death for stealing paint, value twopence-halfpenny, and since men were hanged for stealing sheep and postoffice letters.
There can be little doubt that capital punishment is dying out. In Switzerland, in England, in Italy, for example, the tendency is very clearly marked. Whether its complete extinction is altogether a matter for rejoicing is a question concerning which there is not complete unanimity among those whose opinions carry most weight. An impressive body of opinion is in favour of putting instinctive criminals to death, not out of revenge, but in the spirit in which Galen and Seneca advocated the destruction of incorrigible offenders against social life, regarding them as diseased members to be removed for the advantage of the whole social body. Garofalo, the distinguished Neapolitan lawyer, is perhaps the chief advocate of capital punishment among those who are working for legal reform. He points out that the death penalty is the only one the criminal really dreads, and tells of offenders who committed their crimes under the impression that capital punishment had been abolished, and that they were to be provided with food and shelter for the rest of their lives. On the other hand, it has also been shown that the _éclat_ and public interest involved in a trial for life or death serves as an incentive to the morbid vanity of criminals. Such a penalty as burning “for example of others, as hath been accustomed,” according to the phrasing of Henry VIII.’s statute, has been an example often enough in another sense than the statute intended.
On the whole, we may perhaps be well satisfied that capital punishment--“the shameful practice,” as it has been epigrammatically styled, “of hiring for a guinea an assassin to accomplish a sentence which the judge would not have the courage to carry out himself”--is threatened with extinction in civilised countries. It has the disadvantage of being irrevocable. There would be little chance of mistake if it were only applied to recidivists; but these are a class to whom it is rarely applied. It is certain that mistakes have occurred when in the opinion of the judge the evidence of guilt was absolutely convincing. It is true that the chief cause of this extinction in democratic countries is not the benefit of the criminal, or even the welfare of society; it is a tender regard for the sentiments of the general public. “To punish murder by lifelong imprisonment,” as Sir Robert Rawlinson observed, “is a far severer fate than sudden death, but it is not so revolting.” We have to see to it that our substitutes for the death penalty are of a humane and rational character, and that they afford an equal protection to society. It should never be possible to address to society the words which the daring Duc de Montausier addressed to Louis XIV. concerning a criminal who was finally executed after committing twenty murders: “This man has only committed one murder, the first, and it is you who, by letting him live, have committed the other nineteen.” But, as Benedikt well observes, to kill the criminal is never satisfactory, because we do not kill his accomplices, bad social conditions and defective institutions; we leave untouched the false social sentiments that urged the unmarried girl to kill her own child, or the rigid marriage system that made it easier for the man to kill his wife than to leave her or to allow of her leaving him. Moreover, it must be said that murderers, whom alone it is considered justifiable to eliminate by death, are not usually the most degraded of criminals or the most dangerous to society. In Russia, where capital punishment for common-law offences was abolished more than a century ago, murderers are condemned to hard labour for a period of years, after which they are settled in Siberia. “Eastern Siberia is full of liberated assassins,” remarks Prince Krapotkine, “and, nevertheless, there is hardly another country where you could travel and stay with greater security; while the unceasing robberies and murders of which Siberia complains now, take place precisely in Tomsk and throughout Western Siberia, whereto no murderers and only minor offenders are exiled. In the earlier part of this century it was not uncommon to find at an official’s house that the coachman was a liberated murderer, or that the nurse who bestowed such motherly care upon the children bore imperfectly obliterated marks of the branding-iron.”[90] Mr. Davitt, speaking from an extensive acquaintance with criminals, says:--“The really hardened, irreclaimable criminal will never commit a murder...The most heinous of all offences--murder deliberately intended and planned before commission--is, ordinarily, the offspring of the passions of revenge and jealousy, or the outcome of social or political wrongs; and is more frequently the result of some derangement of the nobler instincts of human nature than traceable to its more debased orders or appetites.”[91] Again, Miss Carpenter, in her _Female Life in Prison_, wrote:--“Some women are less easy to tame than the creatures of the jungle...And yet these women are not always in for the worst crimes: there are few, if any, murderers amongst them; they have been chiefly convicted of theft after theft, accompanied by violence.” These observations are entirely in accord with the results of criminal anthropology; the murderer belongs very frequently to the class of criminals by passion, the least anti-social of all, and is at other times frequently the subject of some morbid impulse, epileptic or insane.
Perhaps the most powerful reason in favour of the probable disappearance of capital punishment is the humanising influence that would be exerted on the community generally. The unreasoning outbursts of ferocity in which, especially among young and emotional democracies, some morbid and distracted creature who fires at a political personage is hurried with glee to the scaffold, or some half-witted human thing who commits a rape is perhaps actually torn to pieces, are not wholesome manifestations of the social spirit. They are far less excusable than the deeds by which they are aroused, for the reason that they arise in more normally constituted persons. So long as capital punishment is legitimate there is, however, at least the appearance of an excuse for the development of these brutalising outbursts. All that is finest in civilisation is bound up with a self-restraint and humanity, as well as a more intelligent insight, which, while admitting a more chastened social reaction, makes ferocity impossible.