It is not possible here to do more than touch slightly on the various methods of dealing with occasional criminals. The one that approaches most nearly to imprisonment is the method of pronouncing suspended sentences of imprisonment to hang over the inculpated individual during a limited period, at the end of which period, if his behaviour is good, the sentence lapses. Imprisonment is thus, as Mr. Tallack remarks, commuted into liability to imprisonment. This plan, applied to minor offences, was adopted in Belgium in 1888, and is in use in some of the United States. In England the First Offenders’ Act enables the magistrate to accept the prisoner’s own recognisances to come up for judgment if called upon, but the law does not seem to be applied so frequently as is desirable. The old English system of recognisances, in which the guilty party deposits a sum of money, is an excellent guarantee to society against his recidivism, and is deserving of extension to all those cases to which it may prove adapted. This plan has been adopted in the United States and in Denmark. A very large proportion of small offenders can be dealt with adequately by means of a fine. This should not be of too trifling a character when the offence has been frequently repeated, and the means of the offender are ample. Nor does it appear desirable that the offender should be allowed at will to choose between fine and imprisonment. The notion of reparation should be combined with the fine when possible, the offender, as Garofalo proposes, paying an indemnity to the injured person, and a fine to the community. With our abstract and impersonal method of dealing with crime, we are much too apt to forget the recompense that is due to the injured person. Féré has suggested that the State ought to undertake this reparation; the community, he argues, has failed in its duty of protecting one of its members, and it ought therefore to repair the injury which it has not known how to prevent. Crime being largely the result of social conditions, the damage it causes should be supported socially by the society which generated the individual. A more practical first step, however, seems to be a recognition that the criminal should be bound to repair the damage he had caused. This reparation should be on a very liberal scale, and with due regard to the anxiety or suffering inflicted on the injured party. When the offender is not in a position to pay money, there should, as Prins points out (and Sir Thomas More long before him), be suitable provision to enable him to give so many days of his labour to work out his penalty and reparation. In several European countries imprisonment for mendicity, vagabondage, and other minor offences, has been abolished, and compulsory work substituted: this is a reasonable change.
In the slightest cases of all, every end of social protection should be attained by a formal “caution.” The publicity which this involves is itself, under modern conditions of life, a sufficient safeguard.
The special and very numerous class of habitual drunkards must be dealt with by special methods. The method, if method it can be called, of treating such cases by a few days’ imprisonment is glaringly ineffective. It is a waste of public time and money, as well as a danger to the individual himself and to society. Habitual inebriates can only be dealt with fairly when they are recognised as diseased persons, to be treated on rational principles, and to be saved, whether they will or not, from doing injury to society and to themselves. It is incomprehensible that in so drunken a country as England this question should not before now have had serious attention, instead of being left to voluntary agency. To leave habitual alcoholism and its results to voluntary agency is as reasonable as it would be to leave the care and control of the insane to voluntary agency. The case for the control and treatment of the inebriate is, indeed, considerably stronger than that for controlling the insane.
To sum up briefly the points in the treatment of the criminal which have been reviewed in this chapter:-- Capital punishment is disappearing. There is, however, no reason to hasten unduly its complete extinction, because lifelong imprisonment, under existing conditions, is frequently less humane, and is not of greater value for purposes of social protection.
The prison needs to be made a far more active and thorough instrument of social reformation than it is at present. Great circumspection must be shown in selecting the individual whom it is desirable to send to prison, but when selected he must be retained until there is reasonable presumption that he will no longer be dangerous to society. In place of mere routine and surveillance, he must be subjected to intelligent and energetic treatment. While he should usually be guarded from contact with his fellow-prisoners, it is desirable, with due restrictions, to promote his intercourse with selected persons of the outside world. His conditional liberation should be delayed until he can be placed in some situation which will enable him to earn his own living. The plan of fixing beforehand the period of the prisoner’s detention appears to have nothing to recommend it, and should be entirely abolished.
In dealing with occasional criminals whom it is not necessary or desirable to put into prison, liability to imprisonment should be substituted. The system of recognisances and of fines to the community, together with reparation to the injured individual, should be developed and extended to all cases to which it may suitably be applied. When the offender is unable to pay a pecuniary fine, he should not be imprisoned, but compelled to give his work.
The class of habitual drunkards requires special and compulsory treatment in special asylums.
CHAPTER VII.
CONCLUSIONS.
We have now seen, in its main outlines, the present condition of this question of the nature and treatment of the criminal. We have seen that criminality is a natural phenomenon, to be studied gravely and carefully according to natural methods; and that by natural and reasonable methods alone can the problem of its elimination be faced with any chance of success.
A simple and obvious conclusion it seems. Yet it is a conclusion not even yet generally accepted, and which is only beginning to find expression in our social life. It is still quite usual to find that crime is regarded as an abstract matter, not to be treated seriously unless the criminal himself is ignored. On the other hand, when the criminal comes in for discussion it is merely as a subject for sensational excitement, or unwholesome curiosity, as a creature to be vituperated or glorified without measure.
The criminal has always been the hero, almost the saint, of the uncultured. That attitude of unbounded reverence for the lunatic, as for an inspired being, and unquestioning submission to his wildest acts which to-day can scarcely be found in Europe outside Turkey, has by no means died out where the criminal is concerned, even in the most civilised country. The same reverence or amazement that the educated feel for the man of genius, the uneducated feel for the criminal.
The Romans gave the name of Hercules to great criminals after death, and dedicated a distinct cult to them. If we go back to a still more primitive phase of life as preserved in folk-lore, and still to some extent perpetuated, we find that all that belongs to an executed criminal brings luck. A finger or other small bone kept in the purse will preserve it from ever being empty. It also keeps away vermin, and protects a thief from his victim. Buried beneath the threshold it brings perpetual blessing, and to have a thief’s thumb among his goods is an excellent thing for a shopkeeper. The people came for the Marquise de Brinvilliers’s bones the day after her execution; they regarded her as a kind of saint, says Mme. de Sevigné. When at Breslau the old Rabenstein (the gallows) was broken down, a great trade was done by the workmen in the bones found beneath. Precious above all is the blood of a criminal; even a few drops on a rag are most costly. Such blood, when drunk, heals fevers and other diseases, just as the blood of gladiators was among the old Romans a cure for epilepsy. It must be drunk fresh, if possible warm. Bread dipped in this blood and eaten is good against the gout. The halter with which a criminal has been hanged has much power and brings luck. When it is struck three times on the threshold, the house is preserved from lightning. The same put into a beer cask with a criminal’s thumb has an excellent influence on the beer. In Franconia the fat of criminals is sometimes inquired for at the druggist’s, and a substance, so called, is handed over. When in Prussia executions took place in public, there was always friction between the armed guards and the crowd of women, who at all costs pressed forward with spoons, cups, and dishes to catch some of the blood. At the execution of a murderer at Hanau in 1861, several men leapt on to the scaffold and drank the steaming blood. At the execution of two murderers in Berlin in 1864, the executioner’s assistants dipped numbers of white handkerchiefs in the blood, and received two thalers for each. The bystanders even call upon the criminal for his most powerful intercession in Heaven. According to Pitré, there is still in Sicily a fetichistic adoration for the souls of the beheaded. The criminal is a person endowed with divine force, to be treated with awe and reverence, and whose blood and flesh have something of the old sacramental power of infusing the divine one’s energy into the body of him who eats of it.[112] 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.
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.