The Criminal Prosecution and Capital Punishment of Animals

Careful investigations would doubtless furnish additional examples of this comical application of the argumentum ad hominem in refutation of the notion that intellectual capacity is determined by the bulk of the brain or the shape of the skull. Ugo Foscolo, one of the most celebrated of modern Italian poets, had a cranium, which, according to this standard of appreciation, ought to have belonged to an idiot. On the other hand, the brain of the “Hottentot Venus,” examined by Gratiolet, far surpassed in the symmetry of both hemispheres and the perfection of its circumvolutions the normal brains of the Caucasian race. The same phenomenon has been observed, although in a less striking manner, occasionally in cretins and quite often in criminals. Character is the resultant of a multitude of combined forces, the great majority of which are still unknown and perhaps unknowable quantities. The impulse given by each must be exactly estimated in order to predetermine the joint effect. No factor which contributes to its formation must be overlooked, and the acceptance of any one of them, however important it may seem to be, as the basis on which to reform and reconstruct our penal legislation, would be premature and pernicious. This hobby-horsical tendency, which is the vice of every specialist, is now the besetting sin of criminal anthropologists, each of whom is firmly convinced that he can reach the goal only on his own garran.

“The more advanced criminalists,” says Professor Von Kirchenheim, “are becoming thoroughly convinced that the penal codes of to-day do not correspond to the criminal world of to-day. No science has remained so deeply rooted and grounded in scholasticism as jurisprudence; and this evil is most clearly perceptible in the province of criminal law. The necessity of a change in our penal legislation has already made itself widely felt. The contest with crime must now be carried on in a different manner from what it was when men waged war with bows and arrows; modern criminality must be fought, as it were, with repeating rifles.” In other words, we can never suppress crime by meeting it with bludgeons and boomerangs and other rude implements of barbarous warfare, but must encounter it with the finest and most effective weapons of precision, which the armoury of modern science can put into our hands. Society has outgrown the crude conception of punishment as mere retaliation or retribution incited by revenge. There is no doubt that even in the most enlightened countries, penology as a science is still in its infancy, and is only just beginning to feel the uncomfortable girding of its scanty swaddling-bands and blindly kicking itself free from them. That this first emancipatory effort should be somewhat clumsy, and occasionally attended by comical casualties and even serious disasters, lies in the very nature of the case. It is evident, too, that the antiquated and utterly irrational methods now employed for the suppression of crime tend directly to increase it. It is the aim of the positive, in distinction from the classical school of criminalists to discover the real causes of criminal actions, and thus to endeavour to eradicate or neutralize them. A casual criminal, for example, whom external conditions, accidental circumstances, sudden temptations or bad influences have led astray, should not be treated in the same manner, although guilty of the same overt act, as the habitual or constitutional criminal, whose wrong-doing arises from a diseased, ill-balanced or undeveloped mental or physical organization, and is therefore an inborn and perhaps irresistible proclivity. The latter is hardly responsible for his conduct, and the possibility of reforming him is slight. The only proper thing to do with such a culprit is to render him personally harmless to society either by death or perpetual incarceration, and to prevent him from propagating his kind. The law of the survival of the fittest through selection suggests as its necessary sequence the suppression of the unfittest through sterilization. Nature has her own effective and relentless method of attaining this desirable result; but man is constantly thwarting her beneficent purposes by all sorts of pernicious schemes originating in factitious sentimentalism and maudlin sympathy, which under the plea of philanthropy tend to foster and perpetuate moral monstrosities to the discomfort and detriment of civilized society and the permanent deterioration of the race. To sentence persons of this class to eight or ten years’ imprisonment and then to turn them loose again as a constant source of peril to mankind, is the greatest folly that any tribunal can possibly commit. It is a wrong done both to the criminal and to the community of which he is a member. The penalties imposed by the law should be determined not solely by the enormity of the crime, but chiefly by the character of the criminal. Paradoxical as such a conclusion may be, it is nevertheless a strictly logical deduction from the premises, that the more corrupt he is by his physical constitution and therefore the less culpable he is from a moral point of view, the more severe should be the sentence pronounced upon him. Where the vicious propensity is in the blood and beyond the reach of moral or penal purgations, the only safety is in the elimination of the individual, just as the only remedy for a gangrened limb is amputation. We ridicule ancient and mediæval courts of justice for prosecuting bugs and beasts, but future generations will condemn as equally absurd and outrageous our judicial treatment of human beings, who can no more help perpetrating deeds of violence, under given conditions, than locusts and caterpillars can help consuming crops to the injury of the husbandman, or wild beasts can help rending and devouring their prey. It is also interesting to know that in former times the animal was not punished capitally because it was supposed to have incurred guilt, but as a memorial of the occurrence, or in the language of canonical law: Non propter culpam sed propter memoriam facti pecus occiditur. It was put to death not because it was culpable, but because it was harmful; and this is the ground on which the radical wing of criminal anthropologists would repress and eliminate a vicious person without regard to his mental soundness or moral responsibility; to use Garofalo’s metaphor he is a microbe injurious to the social organism and must be destroyed.

Lombroso carries his theory of the innateness, hereditability and ineradicableness of criminal propensities so far as to affirm that “education cannot change those who are born with perverse instincts,” and to despair of correcting an obstinate bias of this sort even in a child. In accordance with this idea his disciple, Le Bon, proposes to “deport to distant countries all professional criminals or persistent relapsers into vice (récidivistes) together with their posterity,” and would thus practically revive the barbarous principle of visiting the sins of the fathers upon the children, although he does not regard their conduct as sinful in the sense of being a voluntary transgression of the moral law, but as the result of a transmitted taint and organic deficiency, for which the individual is in no wise responsible. It is hardly necessary to add that this doctrine is not sustained by the statistics of reformatories, houses of refuge and similar institutions, which have now taken the place of the prison and the scaffold in the case of juvenile offenders.

Those who look upon crime as a pathological phenomenon find a striking illustration and strong confirmation of their views in violations of the law committed under the impulse of hypnotic suggestion. Some maintain that all acts originating in this manner are purely automatic, and acquit the person performing them of all moral and legal responsibility, since they express the will and purpose of the hypnotizer, who alone should be held accountable. Others hold that the man, who consents to be hypnotized and thus voluntarily surrenders his will-power and permits himself to be used as an instrument for the perpetration of crime, should be punished for his offences and not allowed to go scot-free by pleading the force majeure of hypnotic suggestion. The liability to punishment, it is justly argued, would be a safeguard to society by putting a wholesome and effective check on hypnotic experimentations. There is at least no reason why the hypnotized subject should not be called to account for accomplicity. Any passion may become automatic and irresistible by long indulgence and assiduous cultivation, so that the man is overmastered by it and cannot help yielding to it under strong temptation; but the victim of a vicious habit has no right to urge the force of an evil propensity in exculpation of himself. The inborn or inveterate badness of a man’s character may explain, but cannot excuse his bad conduct in the impartial and inexorable eye of justice. So, too, he who sins against his own worthiness and dignity as a rational being by choosing to annul his power of self-determination as a voluntary agent and become a helpless tool in the hands of another, ought not wholly to escape the consequences of his folly. That the hypnotizer should be made fully responsible for the realization of his suggestions, no representative of either the positive or classical school of criminalists would probably deny. To take a man’s life by means of hypnotic suggestion is as truly subornation to murder as to hire an assassin to plunge a dagger into his heart.

As regards hypnotism itself, it would be strange enough if we should discover in it the real scientific basis of witchcraft, and modern legislation should prosecute and punish hypnotizers as mediæval legislation prosecuted and punished sorcerers. The sympathetic influence of a morbidly imaginative mind upon the body in directing the currents of nervous energy and increasing the flow of blood towards particular points of the physical organism, so as to produce stigmata and similar abnormal phenomena, has long been recognized as an adequate explanation of much mediæval and modern miracle-mongering. It would now seem as if hypnotism, or the magnetic influence of one man’s will upon another man’s mind and body were destined to furnish the key to still greater marvels and reveal the true nature and origin of what has hitherto passed for divine inspiration or diabolical possession. Charcot, Renaut, Fowler and other eminent neuropathologists have conclusively shown that certain forms of hysteria sometimes produce tumors, ulcers, muscular atrophy, paralysis of the limbs and like affections apparently organic, but really nervous. In such cases any kind of faith-cure, in which the patient has confidence, prayer, the laying on of hands, the water of Lourdes or of St. Ignatius, medals of St. Benedict, scapularies of the Virgin, seraphic girdles, a pilgrimage to the shrine of a saint or contact with a holy relic may prove far more efficacious than drugs and are therefore recommended by priests and occasionally even prescribed by physicians, who are far too enlightened to regard such healings as miraculous or supernatural. The success of scientific research in disclosing the physical basis of intellectual life is gradually undermining the foundations of so-called spiritualism, and rendering it more and more impossible to mistake symptoms of chlorosis and hysterical weakness for spiritual gifts and signs of God’s special favour. Sickly women are no longer treated as seeresses and their vague and incoherent sayings treasured as oracular utterances.

One of the chief difficulties encountered by those who seek to frame and administer penal laws on psycho-pathological principles arises from the fact that no one has ever yet been able to give an exact and adequate definition of insanity. However easy it may be to recognize the grosser varieties of mental disorder, it is often impossible even for an expert to detect it in its subtler forms, or to draw a hard and fast line between sanity and insanity. An eminent alienist affirms that very few persons we meet in the counting-room, on the street or in society, or with whom we enjoy pleasant intercourse at their firesides, are of perfectly sound mind. Nearly every one is a little touched; some molecule of the brain has turned into a maggot; there is some topic that cannot be introduced without making the portals of the mind grate on their golden hinges, – some point at which we are forced to say, —

“O, that way madness lies; let me shun that.”

It is possible, however, that this very opinion may be a fixed idea or symptomatic eccentricity of the alienist himself. The theory that all men are monomaniacs may be merely his peculiar monomania. Still there is unquestionably this much truth in it, that nearly every person has developed some faculty at the expense of the others and thus destroyed his mental equilibrium. Every tendency of this kind, which is not checked or balanced and in some way rounded off in the growth of the character, becomes morbidly strong and leads to a sort of insanity. The specialist is always exposed to this danger of growing into a man of one idea; his monomania may be in the direction of valuable research or in the pursuit of a foolish whim, resulting in useful inventions or dissipating itself in chimerical projects; it may be a harmless crotchet or a vicious proclivity, philanthropic or misanthropic; it is, nevertheless, a bent or bias and so far a deviation from the norm of perfect intellectual rectitude.

A madman, says Coleridge, is one who “mistakes his thoughts for person and things.” But here the frenzies of the lunatic intrench on the functions of the poet, who “of imagination all compact,” takes his fancies for realities,

“Turns them to shapes, and gives to airy nothingA local habitation and a name.”

Coleridge’s definition includes also the mythopœic faculty, the power of projecting creations of the mind and endowing them with objective actuality and independent existence, which in the infancy of the race peopled heaven and earth with phantasms, and still croons over cradles and babbles of brownie and fairy in nurseries and chimney-corners. No progress of science can wholly eradicate this tendency to mythologize. In the absence of better material, it seizes upon the most prosaic and practical improvements in modern household life and clothes them with poetry and legend. The imaginative child of New York or Boston, after feeding the mind on fairy tales, converts the ordinary gas-pipe into the den of a dragon, which puts forth its fiery tongue when the knob is turned. The sleeping figure of a virgin carved in marble and copied from an ancient Greek sculpture of Ariadne, which reposes on an arch in the park of Sans-souci at Potsdam, has been transformed by the popular imagination into an enchanted princess, who will awake as soon as a horseman succeeds in springing over it three times with his steed. So vivid is the belief in this story that many good Christians never pass through the archway without making the sign of the cross as a prophylactic against possible demonic influences. The Suabian peasant still believes that the railroad is a device of the devil, who is entitled by contract to a tollage of one passenger on every train; he is in a constant state of anxiety lest his turn may come on the next trip and always wears a crucifix as the best means, so far as his own person is concerned, of cheating the devil of his due. As the Church has uniformly consigned great inventors to the infernal regions, his Satanic Majesty could have never had any lack of ingenious wits among his subjects capable of advising him in such matters.

An important consideration, which did not disturb the minds of mediæval jurists, nor stay the hand of strictly retributive justice, is the fact, now generally admitted, that crimes, like all other human actions, are subject to certain fixed laws, which seem to some extent to remove them from the province of free will and the power of individual determination. Professor Morselli has shown statistically that suicide, which we are wont to consider a wholly voluntary act, is really dependent upon a great variety of circumstances, over which man has no control: climate, seasons, months, days, state of crops, domestic, social, political, financial, economical, geographical and meteorological conditions, sun, moon, and stars all work together, impelling him to self-destruction or keeping him from it. Suicide increases when the earth is in aphelion, and decreases when it is in perihelion. Race and religion are also important factors in aggravating or mitigating the suicidal tendency, Germans and Protestants being most, and Semitic nations and Mohammedans, including those of Aryan and African blood, being least addicted to it. Suicide is, in fact, the resultant of a vast number of complicated and far-reaching forces, which we can neither trace nor measure, and of which the victims themselves are for the most part unconscious. To a very considerable degree, it is a question of environment in the broadest sense of the term; “an effect,” says Morselli, “of the struggle for existence and of human selection, working according to the laws of evolution among civilized peoples.” What is proved to be true of self-slaughter is equally so of murder and every other crime.

An additional reflection, that “must give us pause” in the presence of crime, is that some of the chief causes operating to produce the manifold evils afflicting society and threatening to subvert it, are due in a great measure to the present egoistic organization of our social and industrial system, the selfish and unscrupulous power of wealth directed and stimulated by superior intelligence and energy, on the one hand, and the brute forces of ignorance driven to despair by the disheartening and debasing pressure of poverty, on the other hand, arrayed against each other in fierce and bitter conflict. Much of the individual viciousness, which society is required to punish, springs directly from the unjust and injurious conditions of life, which society itself has created. It is the perception of this fact that disturbs the conscience, puzzles the will, and palsies the arm of the modern law-giver and executor of justice.

Mediæval legislators were not restrained by any scruples of this sort; they regarded the criminal, both human and animal, as the sole author of the crime, ascribing it simply to his own wickedness and never looking beyond the mere actual deed to the social influences, psychical and physical characteristics and inherited qualities, that impelled him with irresistible force to do iniquitous things. This was doubtless a very narrow, superficial and utterly unphilosophical view of human action and responsibility; the danger now-a-days lies in the opposite extreme, in the tendency to pity the vicious individual as the passive product and commiserable victim of unfortunate conditions, and while engaged in the laudable attempt to improve these conditions by working out broad and benevolent plans of permanent relief and reformation for the future amelioration of society, to relax penalties and to fail in providing by sufficiently stringent measures for its present security. Tribunals have only to do with individual criminals as their conduct affects the general welfare. In what manner their characters have been formed by ancestral agencies and other predispositions may be an interesting study to the psychologist and the sociologist, but does not concern the judge or the jurist in the discharge of their official functions. The problem of crime is therefore a very simple one, so far as the criminal lawyer has to deal with the concrete case, but very complex, when we look beyond the overt act to its genesis in the life of the race. The proper administration of penal justice is weakened and defeated by mixing itself up with psycho-pathological inquiries wholly foreign to it.

It is a curious coincidence that the theory of evolution, in its application to man’s free agency, should arrive at essentially the same conclusion as the theology of Augustine and Calvin. Predestination, which the suffragan of Hippo and the Genevan divine attributed to the arbitrary decrees of God, evolution traces to the influences of heredity upon individuals, predetermining their bodily and mental constitutions. There is, however, a wide difference between these two doctrines in their workings. From the clutch of a deity “willing to show his wrath and to make his power known,” no man can by any effort of his own effect his escape. Against this imperious and general sentence of damnation no process of development, no upward striving, no individual initiative can be of any avail. Evolution, on the contrary, promises a gradual release from low ancestral conditions – the original sin of the theologians – and opens up to the race a way of redemption, not only through natural selection and spontaneous variations resulting in higher and nobler types of mankind, but also through the modification of inherited traits by careful breeding, thorough discipline and the conscious and constant endeavour of every human being to improve and perfect himself. Salvation through the “election of grace” is by no means identical with salvation through the “survival of the fittest.” The righteousness of those whom God has chosen as “the vessels of mercy whom he had afore prepared unto glory,” may be and probably is “as filthy rags”; evolutionary science, on the contrary, recognizes and appreciates redeemable qualities by selecting, strengthening and propagating them and by this means aims ultimately to redeem the world. It imposes upon each man the duty and necessity of working out his own salvation, not with fear and trembling at the prospect of meeting an angry deity, but with hope and cheerfulness, knowing that the beneficent forces of nature are working in him, as in all forms of organic life, in obedience to the laws of development, towards the goal of his highest possible perfection by gradually eliminating the heirloom of the beast and the savage, and letting the instincts of the tiger and the ape slowly die within him. “The best man,” said Socrates, “is he who seeks most earnestly to perfect himself, and the happiest man is he who has the fullest consciousness that he is perfecting himself.” This utterance of the Athenian sage expresses the fundamental principle of the ethics of evolution, according to which there can be no greater sin than the neglect of self-culture, holding, as it does, in the province of science a place corresponding in importance to that which the unpardonable sin against the Holy Ghost holds in the province of theology. No one is blamable for inheriting bad tendencies; but every one is blamable for not striving to eradicate them. If evil impulses prove to be irresistible, then society must step in and render them harmless by depriving of life or liberty the unfortunate victims of such propensities.

Again, if the mental and moral qualities of the lower animals differ from those of man, not in kind, but only in degree, and the human mammal is descended from a stock of primates, to which apes and bats belong, and dogs and cats and pigs are more remotely akin, it is difficult to determine the point at which moral and penal responsibility ceases in the descending, or begins in the ascending scale of being. That beasts and birds and even insects commit acts of violence, which in human agents would be called crimes, and which spring from the same psychical causes and, as we have shown in another work (Evolutionary Ethics and Animal Psychology. New York: D. Appleton and Co.; London: William Heinemann, 1898), are punished by the herd, the flock or the swarm in a more or less judicial manner, is undeniable. The zoöpsychologist Lacassagne divides the criminal offences of animals into six classes or categories, the ground of the classification being the motives which underlie and originate them. The lowest or most rudimentary motive to crime in both man and beast is hunger, the operation of which is seen in the spectacle of one savage killing another in order to get sole possession of a wild beast slain by them in common, and in the ferocity of two dogs fighting over a bone. Perhaps the great majority of crimes afflicting society at the present time have their origin in this source. Next to the desire of the individual to preserve himself comes the desire to preserve his kind; this motive is commonly considered a more generous impulse and is praised as parental affection. This earliest and most primitive of altruistic emotions is exceedingly strong in the lower animals, especially in those whose offspring are comparatively helpless in infancy, as is the case with all species of monkeys, and manifests itself not only in tender care of the young, but also in theft, robbery, and other acts of violence committed for their sake. The wanton love of destruction characterizes both beasts and men; there are roughs and vandals among the former as well as among the latter, who take a malicious delight in doing injury to persons and property. Vanity and the desire of “showing off” play no small part in the wrongdoings of apes and apish men and women. Other incentives to crime are ambition, sexual passion, gregariousness, the concentrated egoism and merciless brutality of a crowd even in the most civilized communities, the outrages so recklessly perpetrated by what a French jurist, M. Tarde, calls “that impulsive and maniac beast, the mob.” It may be remarked, too, that the kinds of criminal actions, which civilization tends to diminish among men, domestication tends to diminish among the lower animals.