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It is true, as Blackstone asserts, that the Church claimed deodands as her due and put the price of them into her own coffers; but this fact does not explain their origin. They were an expression of the same feeling that led the public authorities to fill up a well, in which a person had been drowned, not as a precautionary measure, but as a solemn act of expiation; or that condemned and confiscated a ship, which, by lurching, had thrown a man overboard and caused his death.

Deodands were not abolished in England until the reign of Queen Victoria. With the exception of some vestiges of primitive legislation still lingering in maritime law, they are, in modern codes, one of the latest applications of a penal principle, which, in Athens, expatriated stocks and stones, and in other countries of Europe excommunicated bugs and sent beasts to the stake and to the gallows.

CHAPTER II

MEDIÆVAL AND MODERN PENOLOGY

A striking and significant indication of the remarkable change that has come over the spirit of legislation, and more especially of criminal jurisprudence, in comparatively recent times, is the fact that whereas, a few generations ago, lawgivers and courts of justice still continued to treat brutes as men responsible for their misdeeds, and to punish them capitally as malefactors, the tendency now-a-days is to regard men as brutes, acting automatically or under an insane and irresistible impulse to evil, and to plead this innate and constitutional proclivity, in prosecution for murder, as an extenuating or even wholly exculpating circumstance. Some persons even maintain, as we have already seen, that such criminals are diabolically possessed and thus account for their inveterate and otherwise incredible perversity on the theory held by the highest authorities in the Middle Ages concerning the nature of noxious animals.

Mediæval jurists and judges did not stop to solve intricate problems of psycho-pathology nor to sift the expert evidence of the psychiater. The legal maxim: Si duo faciunt idem non est idem (if two do the same thing, it is not the same) was too fine a distinction for them, even when one of the doers was a brute beast. The puzzling knots, which we seek painfully to untie and often succeed only in hopelessly tangling, they boldly cut with executioner’s sword. They dealt directly with overt acts and administered justice with a rude and retaliative hand, more accustomed and better adapted to clinch a fist and strike a blow than to weigh motives nicely in a balance, to measure gradations of culpability, or to detect delicate differences in the psychical texture and spiritual qualities of deeds. They put implicit faith in Jack Cade’s prescription of “hempen caudle” and “pap of hatchet” as radical remedies for all forms and degrees of criminal alienation and murderous aberration of mind. Phlebotomy was the catholicon of the physician and the craze of the jurist; blood-letting was regarded as the only infallible cure for all the ills that afflict the human and the social body. Doctors of physic and doctors of law vied with each other in applying this panacea. The red-streaked pole of the barber-surgeon and the reeking scaffold, symbols of venesection as a means of promoting the physical and moral health of the community, were the appropriate signs of medicine and jurisprudence. Hygeia and Justicia, instead of being represented by graceful females feeding the emblematic serpent of recuperation or holding with firm and even hand the well-poised scales of equity, would have been more fitly typified by two enormous leeches gorged with blood.

Even the dead, who should have been hanged, but escaped their due punishment, could not rest in their graves until the corpse had suffered the proper legal penalty at the hands of the public executioner. Their restless ghosts wandered about as vampires or other malicious spooks until their crimes had been expiated by digging up their bodies and suspending them from the gallows. Culprits, who died on the rack or in prison, were brought to the scaffold as though they were still alive. In 1685, a were-wolf, supposed to be the incarnation of a deceased burgomaster of Ansbach, did much harm in the neighbourhood of that city, preying upon the herds and even devouring women and children. With great difficulty the ravenous beast was finally killed; its carcass was then clad in a tight suit of flesh-coloured cere-cloth, resembling in tint the human skin, and adorned with a chestnut brown wig and a long whitish beard; the snout of the beast was cut off and a mask of the burgomaster’s features substituted for it, and the counterfeit presentment thus produced was hanged by order of the court. The pelt of the strangely transmogrified wolf was stuffed and preserved in the margrave’s cabinet of curiosities as a memorial of the marvellous event and as ocular proof of the existence of were-wolves.

In Hungary and the Slavic countries of Eastern Europe the public execution of vampires was formerly of frequent occurrence, and the superstition, which gave rise to such proceedings, still prevails among the rural population of those semi-civilized lands. In 1337, a herdsman near the town of Cadan came forth from his grave every night, visiting the villages, terrifying the inhabitants, conversing affably with some and murdering others. Every person, with whom he associated, was doomed to die within eight days and to wander as a vampire after death. In order to keep him in his grave a stake was driven through his body, but he only laughed at this clumsy attempt to impale a ghost, saying: “You have really rendered me a great service by providing me with a staff, with which to ward off the dogs when I go out to walk.” At length it was decided to give him over to two public executioners to be burned. We are informed that when the fire began to take effect, “he drew up his feet, bellowed for a while like a bull and hee-hawed like an ass, until one of the executioners stabbed him in the side, so that the blood oozed out and the evil finally ceased.”

Again in 1345, in the town of Lewin, a potter’s wife, who was reputed to be a witch, died and, owing to suspicions of her pact with Satan, was refused burial in consecrated ground and dumped into a ditch like a dog. The event proved that she was not a good Christian, for instead of remaining quietly in her grave, such as it was, she roamed about in the form of divers unclean beasts, causing much terror and slaying sundry persons. Thereupon she was exhumed and it was found that she had chewed and swallowed one half of her face-cloth, which, on being pulled out of her throat, showed stains of blood. A stake was driven through her breast, but this precautionary measure only made matters worse. She now walked abroad with the stake in her hand and killed quite a number of people with this formidable weapon. She was then taken up a second time and burned, whereupon she ceased from troubling. The efficacy of this post-mortem auto da fé was accepted as conclusive proof that her neighbours had neglected to perform their whole religious duty in not having burned her when she was alive, and were thus punished for their remissness.

Döpler cites also the case of Stephen Hübner of Trautenau, who wandered about after death as a vampire, frightening and strangling several individuals. By order of the court his body was disinterred and decapitated under the gallows-tree. When his head was struck off, a stream of blood spurted forth, although he had been already five months buried. His remains were reduced to ashes and nothing more was heard of him.

In 1573, the parliament of Dôle published a decree permitting the inhabitants of the Franche Comté to pursue and kill a were-wolf or loup-garou, which infested that province; “notwithstanding the existing laws concerning the chase,” the people were empowered to “assemble with javelins, halberds, pikes, arquebuses and clubs to hunt and pursue the said were-wolf in all places, where they could find it, and to take, bind and kill it, without incurring any fine or other penalty.” The hunt seems to have been successful, if we may judge from the fact that the same tribunal in the following year (1574) condemned to be burned a man named Gilles Garnier, who ran on all fours in the forest and fields and devoured little children “even on Friday.” The poor lycanthrope, it appears, had as slight respect for ecclesiastical fasts as the French pig already mentioned, which was not restrained by any feeling of piety from eating infants on a jour maigre.

Henry VIII. of England summoned Thomas à Becket to appear before the Star Chamber to answer for his crimes and then had him condemned as a traitor, and his bones, that had been nearly four centuries in the tomb and worshipped as holy relics by countless pilgrims, burned and scattered to the winds.

When Stephen VI. succeeded to the tiara in 896, one of his first acts was to cause the body of his predecessor, Formosus, to be exhumed and brought to trial on the charge of having unlawfully and sacrilegiously usurped the papal dignity. A writ of summons was issued in due form and the corpse of the octogenarian pope, which had lain already eight months in the grave, was dug up, re-arrayed in full pontificals and seated on a throne in the council-hall of St. Peter’s, where a synod had been convened to adjudicate upon the case. No legal formality was omitted in this strange procedure and a deacon was appointed to defend the accused, although the synodical jury was known to be packed and the verdict predetermined. Formosus was found guilty and condemned to deposition. No sooner was the sentence pronounced than the executioners thrust him from the throne, stripped him of his pontifical robes and other ensigns of office, cut off the three benedictory fingers of his right hand, dragged him by the feet out of the judgment-hall and threw his body “as a pestilential thing” (uti quoddam mephiticum) into the Tiber. Not until several months later, after Stephen himself had been strangled in prison, were the mutilated and putrefied remains of Formosus taken out of the water and restored to the tomb. The Athenian Prytaneum, as we have already seen, was guilty of the childishness of prosecuting inanimate objects, but it never violated the sepulchre for the purpose of inflicting post-humous punishment on corpses. The perpetration of this brutality was reserved for the Papal See.

From the standpoint of ancient and mediæval jurisprudents the overt act alone was assumed to constitute the crime; the mental condition of the criminal was never or at least very seldom taken into consideration. It is remarkable how long this crude and superficial conception of justice prevailed, and how very recently even the first attempts have been made to establish penal codes on a philosophic basis. The punishableness of an offence is now generally recognized as depending solely upon the sanity and rationality of the offender. Crime, morally and legally considered, presupposes, not perfect, for such a thing does not exist, but normal freedom of the will on the part of the agent. Where this element is wanting, there is no culpability, whatever may have been the consequences of the act. Modern criminal law looks primarily to the psychical origin of the deed, and only secondarily to its physical effects; mediæval criminal law ignored the origin altogether, and regarded exclusively the effects, which it dealt with on the homœopenal principle of similia similibus puniantur, for the most part blindly and brutally applied.

Mancini, Lombroso, Garofalo, Albrecht, Benedikt, Büchner, Moleschott, Despine, Fouillée, Letourneau, Maudsley, Bruce Thompson, Nicholson, Minzloff, Notovich and other European criminal lawyers, physiologists and anthropologists have devoted themselves with peculiar zeal and rare acuteness to the study and solution of obscure and perplexing problems of psycho-pathological jurisprudence, and have drawn nice and often overnice distinctions in determining degrees of personal responsibility. Judicial procedure no longer stops with testimony establishing the bald facts in the case, but admits also the evidence of the expert alienist in order to ascertain to what extent the will of the accused was free or functionally normal in its operation. Here it is not a question of raving madness or of drivelling idiocy, perceptible to the coarsest understanding and the crassest ignorance; but the slightest morbid disturbance, impairing the full and healthy exercise of the mental faculties, must be examined and estimated. If “privation of mind” and “irresistible force,” says Zupetta, are exculpatory, then “partial vitiation of mind” and “semi-irresistible force” are entitled to the same or at least to proportional consideration. There are states of being which are mutually contradictory and exclusive and cannot co-exist, such as life and death. A partial state of life or death is impossible; such expressions as half-alive and half-dead are hyperbolical figures of speech used for purely rhetorical purposes; taken literally, they are simply absurd. It is not so, however, with states of mind. The intellect, whose soundness is the first condition of accountability, may be perfectly clear, manifesting itself in all its fulness and power, or it may be partially obscured. So, too, the will, whose self-determination is the second condition of accountability, may assert itself with complete freedom and untrammelled force, or it may act under stress and with imperfect volition. Moral coercion, whether arising from external influences, abnormities of the physical organism or defects of the mental constitution, is not less real because it is not easy to detect and may not be wholly irresistible. For this reason, it involves no contradiction in terms and is not absurd to call an action half-conscious, half-voluntary, or half-constrained. “Partial vitiation of mind” is a state distinctly recognized in psychiatrical science. In like manner, there is no essential incongruity in affirming that an impulse may be the result of a “semi-irresistible force.” But these mental conditions and forces do not manifest themselves with equal obviousness and intensity in all cases; sometimes they are scarcely appreciable; again they verge upon “absolute privation of mind” and “wholly irresistible force;” and it is the duty of the judge to adjust the penalty to the gradations of guilt as determined by the greater or less freedom of the agent.

The same process of reasoning would lead to the admission of quasi-vitiations of mind and quasi-irresistible forces as grounds of exculpation. Thus one might go on analyzing and refining away human responsibility, and reducing all crime to resultants of mental derangement, until every malefactor would come to be looked upon, not as a culprit to be delivered over to the sharp stroke of the headsman or the safe custody of the jailer, but as an unfortunate victim of morbid states and uncontrollable impulses, to be consigned to the sympathetic care of the psychiater.

Italian anthropologists and jurisprudents have been foremost and gone farthest, both theoretically and practically, in this reaction from mediæval conceptions of crime and its proper punishment. This violent recoil from extreme cruelty to excessive commiseration is due, in a great measure, to the Italian temperament, to a peculiar gentleness and impressionableness of character, which, combined with an instinctive aversion to whatever shocks the senses and mars the pleasure of the moment, are apt to degenerate into shallow sentimentality and sickly sensibility, thereby enfeebling and perverting the moral sense and distorting all ideas of right and justice. To minds thus constituted the cool and deliberate condemnation of a human being to the gallows is an atrocity, in comparison with which a fatal stab in the heat of passion or under strong provocation seems a light and venial transgression. This maudlin sympathy with the guilty living man, who is in danger of suffering for his crime, to the entire forgetfulness of the innocent dead man, the victim of his anger or cupidity, pervades all classes of society, and has stimulated the ingenuity of lawyers and legislators to discover mitigating moments and extenuating circumstances and other means of loosening and enlarging the intricate meshes of the penal code so as to permit the culprit to escape. To this end they eagerly seized upon the doctrine of evolution and endeavoured to seek the origin of crime in hereditary propensities, atavistic recurrences, physical degeneracies and other organic fatalities, for which no one can be held personally responsible, and constructed upon the basis of the most recent scientific researches a penological system giving free scope and full gratification to this pitying and palliating disposition.

But, although the Italians have been pioneers in this movement, it has not been confined to them; it extends to all civilized nations, and expresses a general tendency of the age. Even the Germans, those leaders in theory and laggards in practice, whose studies and speculations have illustrated all forms and phases of judicial procedure, but who adhere so conservatively to ancient methods and resist so stubbornly the tides of reform in their own courts have yielded on this point. They no longer regard insanity and idiocy as the only grounds of exemption from punishment, but include in the same category “all morbid disturbances of mental activity,” and “all states of mind in which the free determination of the will is not indeed wholly destroyed, but only partially impaired.” In order to realize the radical changes that have taken place in this direction within a relatively recent period, it will suffice merely to compare the present criminal code of the German Empire with the Austrian code of 1803, the Bavarian code of 1813, and the Prussian code of 1851. It must be remembered, too, that these changes have been effected under the drift of public opinion in spite of the political preponderance of Prussia and her strong bureaucratic influence, which has always been exerted in favour of severe penalties, and shown slight consideration for individual frailties and criminal idiosyncrasies in inflicting punishment. As the stronghold of a stolid and supercilious squirearchy (Junkerthum) in Germany, Prussia has stubbornly resisted to the last every reformatory movement in civil and social, and especially in criminal legislation.

A recent decision of the supreme court of the German Empire (pronounced in the summer of 1894) seems to put a check upon this tendency by rejecting the plea of “moral insanity” in the extenuation of crime. As a matter of fact, however, the question whether such a state of mind as “moral insanity” exists or can exist has not yet been settled; and so long as psychiaters do not agree as to the actuality or possibility of this anomalous mental condition, courts of justice may very properly refuse to take it into consideration or to allow it to exert the slightest influence upon their judgment in the infliction of judicial punishment. Moral insanity, as usually defined, involves a disturbance of the moral perceptions and a derangement of the emotional nature, without impairing the distinctively intellectual faculties. The supposed victim of this hypothetical form of madness is capable of thinking logically and often shows remarkable astuteness in forming his plans and executing his criminal purposes, but seems utterly destitute of the moral sense and of all the finer feelings of humanity, performing the most atrocious deeds without hesitation and remembering them without the slightest compunction. In moral stolidity and the lack of susceptibility he is on a level with the lowest savage. German psychiaters, on the whole, are inclined to regard such persons, not as morally insane, but as morally degenerate and depraved; and German jurists and judges are not disposed to admit such vitiation of character as an extenuating circumstance, especially at a time when criminals of this class are on the increase and are banded together to overthrow civilized society and to introduce an era of anarchy and barbarism. The decision of the German judicatory is therefore not reactionary, but merely precautionary, and simply indicates a wise determination to keep the administration of criminal law unencumbered by theories, which science has not yet fully established and which at present can only serve to paralyze the arm of retributive justice.

Mediæval penal justice sought to inflict the greatest possible amount of suffering on the offender and showed a diabolical fertility of invention in devising new methods of torture even for the pettiest trespasses. The monuments of this barbarity may now be seen in European museums in the form of racks, thumbkins, interlarded hares, Pomeranian bonnets, Spanish boots, scavenger’s daughters, iron virgins and similar engines of cruelty. Until quite recently an iron virgin, with its interior full of long and sharp spikes, was exhibited in a subterranean passage at Nuremberg, on the very spot where it is supposed to have once performed its horrible functions; and in Munich this inhuman instrument of punishment was in actual use as late as the beginning of the nineteenth century. The criminal code of Maria Theresa, published in 1769, contained forty-five large copperplate engravings, illustrating the various modes of torture prescribed in the text for the purpose of extorting confession and evidently designed to serve as object lessons for the instruction of the tormentor and the intimidation of the accused. That Prussia was the first country in Germany to abolish judicial torture was due, not to the progressive spirit of the nation or of its tribunals, but solely to the superior enlightenment and energy of Frederic the Great, who effected this reform arbitrarily and against the will of jurists and judges by cabinet-orders issued in 1740 and 1745. Crimes which women are under peculiar temptation to commit, were punished with extraordinary severity. Thus the infanticide was buried alive, a small tube communicating with the outer air being placed in her mouth in order to prolong her life and her agony. A case of this kind is recorded in the proceedings of the “Malefiz-Gericht” or criminal court of Ensisheim in Alsatia under the date of February 3, 1570. In 1401, an apprentice, who stole from his master five pfennigs (then as now the smallest coin of Germany and worth about the fifth of a cent), was condemned to have both his ears cut off. Incredible barbarities of this kind were practised by some of the best and noblest men of that age. Thus Cardinal Carlo Borromeo, who was pre-eminent among his contemporaries for the purity of his life and the benevolence of his character, did not hesitate to condemn Fra Tommaso di Mileto, a Franciscan monk, to be walled up alive, because he entertained heretical notions concerning the sinfulness of eating meat on Friday, and expressed doubts touching the worship of images, indulgences, the supreme and infallible authority of the pope, and the real presence in the eucharist. This cruel sentence, a striking illustration of the words of Lucretius,

 
“Tantum religio potuit suadere malorum,”
 

was pronounced December 16, 1564, as follows: “I condemn you to be walled up in a place enclosed by four walls, where, with anguish of heart and abundance of tears, you shall bewail your sins and grievous offences committed against the majesty of God, and the holy mother Church and the religion of St. Francis, the founder of your order.” A bishop, who should impose such a punishment now-a-days, would be very properly declared insane and divested of his office.

Much ridicule has been cast upon the so-called “Blue Laws” of Connecticut on account of the narrowness and pettiness of their prevailing spirit. From our present point of view they are absurd and in many respects atrocious, but compared with the penal codes of that time they mark a great advance in human legislation. They reduced the number of crimes, then punishable in England by death, from two hundred and twenty-three to fourteen. In the mother-country, as late as the seventeenth century, counterfeiters and issuers of false coin were condemned to be boiled to death in oil by slow degrees. The culprit was suspended over the cauldron and gradually let down into it, first boiling the feet, then the legs and so on, until all the flesh was separated from the bones and the body reduced to a skeleton. The Puritans of New England, relentless as they were in their dealings with sectaries, were never so ruthless as this; nor is it probable that they would have inflicted capital punishment upon their own “stubborn and rebellious sons,” or upon persons who “worship any other God but the Lord God,” had it not been for precedents recorded in laws enacted by a semi-civilized people thousands of years ago and supposed to have been dictated by divine wisdom. They failed to perceive the incongruity of attempting to rear a democratic commonwealth on theocratic foundations and made the fatal mistake of planning their structure after what they regarded as the perfect model of the Jewish Zion.

If we compare these barbarities with the law recently enacted by the legislature of the state of New York, whereby capital punishment is to be inflicted as quickly and painlessly as possible by means of electricity, we shall be able to appreciate the immense difference between the mediæval and the modern spirit in the conception and execution of penal justice.

A point of practical importance, which the criminal anthropologist has to consider is the relation of moral to penal responsibility. If there is no freedom of the will and the commission of crime is the necessary result of physiological idiosyncrasies, hereditary predispositions, brachycephalous, dolichocephalous or microcephalous peculiarities, anomalies of cerebral convolution, or other anatomical asymmetries, over which the individual has no control and by which his destiny is determined, then he is certainly not morally responsible for his conduct. But is he on this account to be exempt from punishment? The vast majority of criminalists answer this question unhesitatingly in the negative, declaring that penal legislation is independent of metaphysical opinion, and that punishment is proper and imperative so far as it is essential to the protection and preservation of society. If the infliction of the penalties depriving a man of his freedom or his life is found to secure these ends, it is the duty of the tribunals established for the administration of justice to impose them without troubling themselves about the mental condition of the culprit or stopping to discuss problems which belong to the province of the psychiater. Legal tribunals are not offices in which candidates for the insane asylum are examined or certificates of admission to reformatories issued, but are organized as a terror to evil-doers in the general interests of society, and all their decisions should have this object in view. If a madman is not hanged for murder, it is solely because such a procedure would exert no deterring influence upon other madmen; society protects itself, in cases of this kind, by depriving the dangerous individual of his liberty and thus preventing him from doing harm; but it has no right to inflict upon him wanton and superfluous suffering. Even if it should be deemed desirable to kill him, the method of his removal should be such as to cause the least possible pain and publicity. Here, too, the welfare of society is the determinative factor.

This doctrine reduces confirmed criminals to the condition of ferocious beasts and venomous reptiles, and logically demands that they should be eliminated for precisely the same reason that noxious animals are exterminated, although neither the human nor the animal creatures are to blame for the perniciousness of their inborn proclivities and natural instincts. In the eyes of Courcelle-Seneuil a prison is a “kind of menagerie”; Naquet, the French chemist and senator, goes still farther, declaring that men are no more culpable for being criminal than vitriol is for being corrosive, and adding that it is our own fault if we put this stuff into our tea and are poisoned by it. The same writer maintains that “there is no more demerit in being perverse than in being cross-eyed or hump-backed.” In a recent lecture on criminal jurisprudence and biology Professor Benedikt cites the case of a Moravian robber and murderer, whose brain was found on dissection to resemble that of a beast of prey and who was therefore, in the opinion of the eminent Viennese authority, no more responsible for his bloody deeds than is a lion or a tiger for its ravages. The corollary to this anatomical demonstration is that one should treat such a man as a lion or a tiger and shoot him on the spot. Atavistic relapses, defective cerebral development and other abnormities undoubtedly occur in criminals, whose acts may be traced, in some degree, to these physical imperfections and therefore be pathologically stimulated and partially necessitated by them. On the other hand, there are thousands of persons with equally small and unsymmetrical craniums, who do not commit crime, but remain respectable, safe, and useful members of society.

Lombroso discovers in habitual malefactors a tendency to tattoo their bodies; but this kind of cuticular ornamentation indicates merely a low development of the æsthetic sense, a barbarous conception of the beautiful or what would be called bad taste, and has not the slightest genetic or symptomatic connection with crime and the proclivity to perpetrate it. As a means of embellishing the exterior man it may be rude and unrefined, but after all it is only skin-deep, and does not extend to the moral character. Honest people of the lower classes take pleasure in disfiguring themselves in this way, and soldiers and sailors, who are very far from furnishing the largest percentage of criminals, are especially addicted to it, simply because they find ample leisure in the barracks and the forecastle to undergo this slow and painful process of what they deem adornment. According to Lombroso criminals have as a rule thick heads of hair and thin beards; but as the majority of them are comparatively young, these phenomena are by no means remarkable. He has also found that the hair of such persons is usually black or dark chestnut; had his investigations been carried on in Norway and Sweden instead of in Italy, he would have certainly come to the conclusion that flaxen hair is an index of a criminal character.