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.

It would be difficult to deny the existence of a constitutionally criminal

class, a persistently perverse element, which is the born foe of all law

and order, at war with every form of social and political organization and

whose permanent attitude of mind is that of the Irishman, who, on landing

in New York, inquired: “Have ye a government here?” and, on receiving an

affirmative answer, replied, “Then I’m agin’ it.” Criminal anthropologists

have been especially earnest in their endeavours to define this pernicious

type and to determine the physiological and physiognomical features, which

characterize and constitute it. This line of research is unquestionably in

the right direction, but as a reaction against barren scholastic

speculations and brutal penal codes has been carried to excess by

enthusiastic specialists and led to broad generalizations and hasty

deductions from insufficient data. Taine’s definition of man as “an animal

of a higher species, that produces poems and systems of philosophy, as

silkworms spin cocoons and bees secrete honeycomb,” applies with equal

force to the vicious side of human nature. Criminal propensities, as well

as creative powers, are the resultants of race, temperament, climate,

food, organism, environment and other pre-natal and post-natal influences

and agencies, to which the individual did not voluntarily subject himself

and from which he cannot escape. The acts, therefore, which he performs,

whether good or evil, are as independent of his will as the colour of his

hair or the shape of his nose; for while they are apparently volitional

impulses, the will itself, from which they seem to proceed, is determined

by forces as fixed and free from his control as are those which render him

blue-eyed or snub-nosed.

The penological application of this philosophical principle has given rise

to numerous theories concerning the nature and origin of crime. Lombroso

and his disciples, as we have already intimated, attribute it to atavism

or the survival in the individual of the animal instincts and low morals

of the aboriginal barbarian. The criminal is simply a savage let loose in

a civilized community and ignoring the ethical conceptions developed by

ages of culture and performing actions that would have seemed perfectly

proper and praiseworthy in the eyes of our pre-historic ancestors. The

hero of the Palæolithic age is the brigand and cut-throat of to-day. The

criminal type is nothing but a reversion to the primitive type of the

race, and the representatives of this school of anthropologists have been

untiring in their efforts to discover physical and moral characteristics

common to both: long arms like chimpanzees, four circumvolutions of the

frontal lobes of the brain like the large carnivora, small cranial

capacity like the cave-men, canine teeth like anthropoid apes and a simian

nose. This analogy extends to the eyes, the ears, the hair, and even to

the internal organs, the liver, the heart and the stomach, and the

diseases by which they are affected. It has also been observed that

assassins are brachycephalous and thieves dolichocephalous. Marro

maintains that in many cases metaphors express real facts and embody the

common conclusions of mankind based upon centuries of observation:

swindlers have a foxy look, long-fingered persons are naturally thievish,

whereas a club-fisted fellow is pretty sure to have a pugnacious

disposition, and to be a born rough. Nevertheless social surroundings,

educational influences and other outward circumstances are important

factors, not so much in changing the character as in giving it direction;

the same cerebral constitution and consequent innate predisposition may

make a man a hero or a bravo, a dashing soldier like Phil Sheridan, or a

daring robber like Fra Diavolo, according to the place of his birth and

the nature of his environment.

In common discourse we speak of atrabiliary, spleeny, choleric, or even

stomachous persons, but such expressions are, in most cases, survivals of

antiquated beliefs concerning the functions of certain physical organs.

Hypochondria has no more originary connection with the cartilage of the

breastbone than with the cartilage of the ear. In the literal sense of the

terms a large-brained man is not necessarily of superior intellectual

power any more than a large-hearted man is naturally generous or a

large-handed man instinctively grasping. So, too, the theory that

intelligence and morality are in direct proportion to the size and

symmetry of the encephalon is not sustained by facts; at least the

exceptions to the rule are so many and so remarkable as to render it

extremely misleading and therefore of little practical value as a

scientific principle. Gambetta’s brain, for example, weighed only 1294

grammes, being fifty-eight grammes less in weight than that of the average

Parisian, and was so abnormally irregular in its configuration as to seem

actually deformed. Any physiologist, says Dr. Manouvrier, who should come

across such a skull in a museum, would unhesitatingly pronounce it to be

that of a savage. The third frontal circumvolution of the left lobe of his

brain had in the posterior part a supplementary fold said by some to be

the organ of speech and by others to be the organ of theft; perhaps both

combined in the ability of the orator to steal away men’s hearts, as

Antony says of the seductive eloquence of Brutus. The distinguished

physiologist Bichat was an ardent advocate of this doctrine of the causal

connection between cranial capacity and symmetry and vigorous and

well-balanced mental faculties, but after his death his own cranium was

found to be conspicuously lacking in the very characteristics which he

deemed so essential to man as a moral and intellectual being. The late

German professor Bischoff based his argument against the higher education

of woman on the fact that the average female brain weighs only 1272

grammes, and asserted that a person with such a light encephalon must be

organically incompetent to master the various branches of study taught in

our universities. A post-mortem examination proved his own brain to be

considerably inferior in weight to that of the average woman.

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 nothing

A 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.

If these statements be correct, why should not animals be held penally

responsible for their conduct as well as human beings? There are men

apparently less intelligent than apes. Why then should the man be

capitally punished and the ape not brought to trial? And if the ape be

made responsible and punishable, why not the dog, the horse, the pig, and

the cat? In other words, does evolutionary criminology justify the

judicial proceedings instituted by mediæval courts against animals or

regard the typical human criminal as having in this respect no supremacy

over the beast? Does modern science take us back to the barbarities of the

Middle Ages in matters of penal legislation, and in abolishing judicial

procedure against quadrupedal beasts is it thereby logically forced to

stay the hand of justice uplifted against bipedal brutes? The answer to

these questions is unhesitatingly negative. Zoöpsychology is the key to

anthropopsychology and enables us to get a clearer conception of the

genesis of human crime by studying its manifestations in the lower

creation; we thus see it in the process of becoming, acquire a more

correct appreciation of its nature and origin and learn how to deal with

it more rationally and effectively in bestial man.

Another point discussed by Plato and still seriously debated by writers on

criminal jurisprudence is whether punishment is to be inflicted _quia

peccatum est_ or _ne peccetur_; in other words, whether the object of it

should be retributive or preventive. The truth is, however, that both of

these motives are operative and as determining causes are so closely

intermixed that it is impossible to separate them. As the distinguished

criminalist, Professor Von Liszt, has remarked one might as well ask

whether a sick man takes medicine because he is ill or in order to get

well. The penalty is imposed in consequence of the commission of a crime

and also for the purpose of preventing a recurrence of it, and is

therefore both retributory and reformatory. Punishment is defined by Laas

as “ethicized and nationalized revenge, exercised by the state or body

politic, which is alone impartial enough to pronounce just judgments and

powerful enough to execute them.” Civilization takes vengeance out of the

hands of the injured individual and delegates it to the community or

commonwealth, which has been outraged in his person. The underlying

principle, however, is, in both cases, the same, and the idea of justice,

as administered by the community, does not rise above that entertained by

the aggregate or average of individuals composing it.

The recent growth of sociology and especially the scientific study of the

laws of heredity thus tend, by exciting an intelligent interest in the

psychological solution of such questions, to render men less positive and

peremptory in their judicial decisions. The intellectual horizon is so

greatly enlarged and so many possibilities are suggested, that it is

difficult for conscientious persons, strongly affected by these

speculations and honestly endeavouring to make an ethical or penal

application of them, to come to a prompt and practical conclusion in any

given case. The voice of decision loses its magisterial sternness and

“the native hue of resolution

Is sicklied o’er with the pale cast of thought.”

If it be true, as Mr. Galton affirms, that legal ability is transmitted

from father to son, criminal proclivity may be equally hereditary, and the

judge and the culprit may have reached their relative positions through a

line of ancestral influences, working according to immutable and

inevasible laws of descent.

Schopenhauer maintained the theory of “responsibility for character,” and

not for actions, which are simply the outgrowth and expression of

character. The same act may be good or bad according to the motives from

which it springs. This distinction is constantly made both in ethics and

in jurisprudence, and determines our moral judgments and judicial

decisions. Yet the chief elements, which enter into a person’s character

and contribute to its formation, lie beyond his control or even his

consciousness, and in many cases have done their work before his birth.

Responsibility for character is equivalent to responsibility for all the

inherited tendencies and prenatal influences, of which character is the

resultant, and leads at last to the theological dogma of the imputation of

sin all the way back to Adam as the federal head of the race, a doctrine

which Schopenhauer would be the first to repudiate. Besides, evil

propensities and criminal designs are recognizable and punishable only

when embodied in overt acts. The law cannot deprive a man of life or

liberty because he is known to be vicious and depraved, although the

police in the exercise of its protective and preventive functions and as a

means of providing for the general security, may feel in duty bound to

keep a watchful eye on him and to make an occasional raid on the dens and

“dives” haunted by him and his kind. There are also instances on record,

in which it is impossible to trace the culpable act to any marked

corruption of character.

A rather remarkable illustration of this fact is furnished by the trial of

Marie Jeanneret, which took place at Geneva in Switzerland in 1868 and

which deservedly ranks high among the _causes célèbres_ of the present

century, both as a legal question and a problem of psycho-pathology. [At

the time when this trial occurred, the writer directed attention to the

peculiar and perplexing features of the case in _The Nation_ for January

7, 1869, p. 11.] Dumas in his novel _Le Comte de Monte Christo_, describes

the character and career of a young, refined and beautiful woman, moving

in the best circles of Parisian society, and yet poisoning successively

six or seven members of her own family; but even the most imaginative and

audacious of French romancers did not dare to delineate such criminality

without ascribing it to some apparently adequate motive. Madame de

Villefort administered deadly potions to her relatives under the impulse

of a morbidly intense maternal love, which centred all her moral and

intellectual faculties on the idea of making her son the sole heir to a

large estate. Affection and social ambition for her offspring incited her

to the murder of her kin. But the invention, which created such a monster

of sentimental depravity, has been far surpassed in real life by the

exploits of Marie Jeanneret, a Swiss nurse, who took advantage of her

professional position to give doses of poison to the sick persons confided

to her care, from the effects of which seven of them died.

In the commission of this monotonous series of diabolical crimes, the

culprit does not seem to have been animated either by animosity or

cupidity. On the contrary, she always showed the warmest affection for her

victims, and nursed them with the tenderest care and the most untiring

devotion, as she watched the distressful workings of the fatal draught;

nor did she derive the slightest material benefit from her course of

conduct, but rather suffered considerable pecuniary loss by the death of

her patients. The testimony of physicians and alienists furnished no

evidence of insanity, nor did she show any signs of atavistic reversion,

physiological abnormity or hereditary homicidal bent. Monomaniacs usually

act fitfully and impulsively; but Marie Jeanneret always manifested the

coolest premeditation and self-possession, never exhibiting the least

hesitation or confusion, or the faintest trace of hallucination, but

answered with the greatest clearness and calmness every question put by

the president of the court. Even M. Turrettini, the prosecuting attorney,

in presenting the case to the jury, was unable to discover any rational

principle on which to explain the conduct and urge the conviction of the

accused; and after exhausting the common category of hypotheses and

showing the inadequacy of each, he was driven by sheer stress of

inexplicability to seek a motive in “_l’espèce de volupté qu’elle

éprouverait à commettre un crime_,” or what, in less elegant, but more

vigorous Western vernacular, would be called “pure cussedness.” Not only

was such an explanation merely a circumlocutory confession of ignorance,

but it was wholly inconsistent with the general character of the indictee.

Indeed, the persistent and pitiless perpetration of this one sort of crime

by this woman, under circumstances which should have excited compassion in

the hardest human heart, seems more like the working of some baneful and

irrepressible force in nature, or the relentless operation of a

destructive machine, than like the voluntary action of a free and

responsible moral agent. M. Zurlinden, the counsel for the defendant,

dwelt with emphasis upon this mysterious phase of the case and thus saved

his client from the scaffold. The jury, after five hours’ deliberation,

rendered a verdict of “Guilty, with extenuating circumstances,” as the

result of which the accused was sentenced to twenty years’ hard labour.

As a matter of fact, there were no circumstances of an extenuating

character except the utter inability of the jurors to discover any motive

for the commission of such a succession of cold-blooded atrocities.

After fifteen years’ imprisonment the convict died. During this whole

period of incarceration she not only showed great intelligence and strict

integrity, but was also remarkably kind and helpful to all with whom she

came in contact. She instructed her fellow-convicts in needle-work and

fine embroidery, loved to attend them in sickness, and by her general

influence raised very perceptibly the tone of morals in the workhouse. If

it be true, as asserted by Mynheer Heymanns, one of the latest expounders

of Schopenhauer’s ethics, that “a man is responsible for his actions only

so far as his character finds expression in them, and is to be judged

solely by his character,” what shall be done in cases like the

afore-mentioned, in which the criminal conduct is exceptional, and so far

from being symptomatic of the general character stands out as an isolated

and ugly excrescence and appalling abnormity? According to this theory

crime is to be punished only when it is the natural outgrowth and

legitimate fruit of the criminal’s individuality and society is to be left

unprotected against all maleficence not traceable to such an origin.

There can be hardly any doubt that the Swiss nurse was a toxicomaniac and

that she had become infatuated with poisons, partly by watching their

effects on her own system, and partly by reading about their properties in

medical and botanical works, to the study of which she was passionately

devoted. Did not Mithridates, if we may believe the statements of Galen,

experiment with poisons on living persons? Why should she not follow such

an illustrious example, especially as she never hesitated to take herself

the potions she administered to others; the only difference being that

habit had made her, like the famous King of Pontus, proof against their

venom. She often attempted analyses of these substances, and in one

instance was severely burned by the bursting of a crucible, in which she

was endeavouring to obtain atropine from atropa belladonna or deadly

nightshade. It was this terrible poison, which is endowed with exceedingly

energetic qualities and is therefore used by physicians with extreme

precaution, that seems to have had an irresistible fascination for her,

growing into an insane desire to discover and test its occult virtues. She

had read and heard of zealous scientists and illustrious physicians, who

had experimented on themselves and on their disciples, and become the

benefactors of mankind; why then should she not adopt the same method in

the pursuit of truth and use for this purpose the physiological material

which her profession placed in her hands?

However preposterous such reasoning on her part may appear to us and

however vaguely and subconsciously the mental process may have been

carried on, it offers the only theory adequate to explain all the facts

and to account for the almost incredible union of contradictory traits in

her character. The enthusiasm of the experimenter overbore in her the

native sympathy of the woman. She observed the writhings of her poisoned

victims with as “much delight” as Professor Mantegazza confesses he felt

in studying the physiology of pain in the dumb animals “shrieking and

groaning” on his tormentatore. “The physiologist,” says Claude Bernard,

“is no ordinary man. He is a savant, seized and possessed by a scientific

idea. He does not hear the cries of suffering wrung from racked and

lacerated creatures, nor see the blood which flows. He has nothing before

his eyes but his idea and the organisms, which are hiding the secrets he

means to discover.” Marie Jeanneret was a fanatic of this kind. She, too,

was a woman possessed with ideas as witches were once supposed to be

possessed with devils. Had she prudently confined her experiments to the

torture of helpless animals, she might perhaps have taken rank in the

scientific world with Brachet, Magendie and other celebrated vivisectors,

and been admitted with honour to the Academy, instead of being thrust

ignominiously into a penitentiary.

The assertion as regards any supposed case of madness, that “there’s

method in it,” is popularly assumed to be equivalent to a denial of the

existence of the madness altogether. But psycho-pathology affords no

warrant for such an assumption. An individual, who commits murder under

the impulse of morbid jealousy, pecuniary distress, social rancour,

political or scientific fanaticism, or any other form of monomania, is not

the less the victim of a mind diseased because he shows rational

forethought in planning and executing the deed. His mental faculties may

be perfectly healthy and normal in their operation up to the point of

derangement, from which the fatal act proceeds. No chain is stronger than

its weakest link; and this is equally true of physical and psychical

concatenations. Under such circumstances the sane powers of the mind are

all at the mercy of the one fault and are made to minister to this single

infirmity.

According to English law a man is irresponsibly insane, when he has “such

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.” This definition is very incomplete and

covers only the most obvious forms of insanity; perhaps in the great

majority of cases there is no “defect of reason” nor “disease of mind” in

the proper sense of these terms, but only a disturbance of the emotions or

perversion of the will originating in physical disorder. Besides, it is

undeniable that animal intelligence is capable of distinguishing between

right and wrong and of comprehending what is punishable and what is not

punishable. In general when a dog does wrong, he knows that he is doing

wrong; and a monkey often takes delight in doing what is wrong simply

because he knows it is wrong. If a monkey gets angry and kills a child, he

obeys the same vicious propensity that impels a brutal man to commit

murder. There is no greater “defect of reason” in one case than in the

other. Why then should the monkey be summarily shot or knocked on the

head, and the man arrested, tried, convicted and hanged by the constituted

authorities? Simply because such a public prosecution and execution would

not exert any influence whatever in preventing infanticide on the part of

other monkeys; if it could be shown that a formal trial of the monkey

would produce this salutary effect, then it certainly ought not to be

omitted. The recent attempt to modify the English law so as to render all

“certifiably insane” persons irresponsible for their actions, would result

in the abolition of all punishment for crime, since many physicians regard

every criminal as insane and would not hesitate to certify their opinion

to the proper tribunal.

It is no easy task now-a-days for penal legislation to keep pace with

psychiatral investigation and to adjust itself to the wide range and nice

distinctions of modern psycho-pathology; nor is it necessary to do so.

_Salus socialis suprema lex esto._ Society is bound to protect itself

against every criminal assault, no matter what its source or character may

be. This is the ultimate object not only of the prison and the scaffold,

but also of all reformatories for juvenile offenders and vagabonds, who by

judicious correction and instruction may perhaps be brought to amend their

ways and thus be prevented from becoming a social danger by swelling the

disorderly ranks of the permanently criminal classes. If a person proves

to be unamenable to moral or penitential measures and remains an

incorrigible transgressor, it is the duty of the community to set him

aside by death or by life-long durance. Penal legislation does not aim

primarily at the betterment of the individual; laws are enacted not for

the purpose of making men good and noble, but solely for the purpose of

rendering them safe members of society. This is effected by depriving the

irremediably vicious of their liberty and, if necessary, also of their

life.

The pardoning power, too, must be exercised with the utmost reserve and

circumspection. The state does not look upon public offences as sins but

as crimes. The introduction of the theological conception of delinquencies

into the province of civil government has always been the vice of

hierarchies and has never failed to work immense mischief by leading

inevitably to impertinent intermeddling with matters of conscience and

private opinion, putting a premium on pretended repentance and like

hypocrisies, and converting the witness-box into a confessional and the

court of justice into a court of inquisition. This has been uniformly the

result wherever a body of priests has become a body of rulers, endowed

with sovereignty in the administration of secular affairs.

If it could be conclusively proved or even rendered highly probable, that

the capital punishment of an ox, which had gored a man to death, deterred

other oxen from pushing with their horns, it would be the unquestionable

right and imperative duty of our legislatures and tribunals to re-enact

and execute the old Mosaic law on this subject. In like manner, if it can

be satisfactorily shown that the hanging of an admittedly insane person,

who has committed murder, prevents other insane persons from perpetrating

the same crime, or tends to diminish the number of those who go insane in

the same direction, it is clearly the duty of society to hang such

persons, whatever may be the opinion of the alienist concerning their

moral responsibility. Nor is this merely a hypothetical case or purely

academical question. It is a well-established fact, that the partially

insane, especially those affected with “moral insanity” or so-called

“cranks,” have their intelligence intact, and are capable of exercising

their reasoning powers freely and fully in laying their plans and in

carrying out their designs. Indeed, criminals of this class are sometimes

known to have entertained the thought that they would be acquitted on the

ground of insanity, and have thereby been emboldened to do the deed; and

it is by no means impossible, but highly probable, that a belief in the

certainty of punishment would have acted as an effective deterrent. A case

of this kind occurred in 1894 in England, where an inmate of a lunatic

asylum deliberately murdered a lawyer, who was visiting the institution.

The murderer declared that he had no grudge against his victim, but

believed himself to be persecuted in general and wished to call attention

to his wrongs by assassinating some official or prominent person. His

method of redress was that of the ordinary anarchist; and his confession

that he would not have dared to commit the act unless he had believed that

as a certificated lunatic under confinement he ran no risk of being

hanged, illustrates the point in question. There can be no doubt, for

example, that the execution of Guiteau for the assassination of Garfield

has greatly lessened the dangers of this kind to which the President of

the United States is exposed; just as the swift and severe punishment of

the Chicago anarchists has dampened the zeal and restrained the activity

of the fanatics, who labour under the delusion that, in a free country,

dynamite bombs are the fittest means of disseminating reformatory ideas

and bringing about the social and political regeneration of the world.

From this point of view it is hardly necessary to remark upon the

absurdity of Lombroso’s assertion that the jurists, who formerly condemned

and punished animals, were more logical and consistent than those who now

pass sentence of death on cretins like Grandi or cranks (_grafomani

matteschi_) like Passannante and Guiteau (_Archivio di Psichiatria._

Torino, 1881, Vol. II. Fasc. IV.), since he utterly ignores the preventive

character and purpose of judicial punishment and its practical utility in

checking the homicidal propensities of such persons, whereas the criminal

prosecution and capital punishment of a pig for infanticide will not have

the slightest effect in preventing other pigs from mangling and devouring

little children.

That animals might be deterred from doing violence to men by putting one

of their kind to death and suspending its body as a scarecrow is

maintained by a distinguished writer in the first half of the sixteenth

century, Hierolymus Rosarius, the nuntius of Pope Clement VII. to the

court of Ferdinand I., then King of Hungary, who states that in Africa

crucified lions are placed near towns, and that other lions, however

hungry they may be, are kept away through fear of the same punishment:

_cujus pœnæ metu, licet urgeat fames, desinunt_. He records also that in

riding from Cologne towards Düren, he and his companions saw in the vast

forest two wolves in brogans hanging on a gallows, just like two thieves,

as a warning to the rest of the pack: “Et nos ab Agrippina Colonia Duram

versus equitantes in illa vasta silva, vidimus duos caligatos lupos non

secus quam duos latrones, furcæ suspensos; _quo similis pœnæ formidine a

maleficio reliqui deterreantur_.” In like manner the American farmer sets

up a dead hawk as a deterrent for the protection of his hens. We may add

that Rosarius entertained a high opinion of the intelligence and moral

character of animals and wrote a book to prove their frequent superiority

to men in the use of their rational faculties. This very clever and

original work entitled: _Quod animalia bruta sæpe ratione utantur melius

homine_, was first published by Gabriel Naudé at Paris in 1648; an

enlarged edition was issued by Ribow at Helmstedt in 1728, with a

dissertation on the soul in animals.

In the class of ill-poised minds, yclept cranks, just mentioned, the

spirit of imitation is peculiarly strong and morbidly contagious. The

celebrated psychiater, Baron Von Feuchtersleben, in his treatise _On the

Diatetics of the Soul_, cites the case of a French soldier, who shot

himself in a sentry-box; soon afterwards, several other soldiers took

their lives in the same manner and in the same place. Napoleon I. ordered

the sentry-box to be burned and thus put an end to the suicides. A similar

instance is recorded by Max Simon in his _Hygiène de l’esprit_, in which

he states that a workman hanged himself in the embrasure of a gate, and

his example was followed directly by a dozen of his fellows, so that it

was found necessary to wall up the gate in order to stop this strange

epidemic. The same effect is produced by popular romances, in which the

hero or heroine or both together dispose of themselves in this way;

sometimes whole communities are thus infected by a single work of fiction;

perhaps the most notable case of this kind in modern literature is the era

of sentimentalism and suicidism which followed the publication of Goethe’s

_Werther_. It is well known, too, that another class of sensational

novels, the plots of which consist in the development of criminal

intrigues, tend to promote crime by rendering it fascinating and

indicating an attractive and exciting method of perpetrating it. We have a

recent and very striking instance of this kind in the origin and evolution

of the notorious Dreyfus affair. In June 1893, a year and a half before

the arrest of Dreyfus, a novel entitled _Les Deux Frères_, by Louis

Letang, appeared in the Paris _Petit Journal_, the plot of which may be

concisely described as follows. A young and capable officer, Captain

Philippe Dormelles, who holds a position of confidence in the French

department of war, is envied and hated by two colleagues named Aurélien

and Daniel. Their enmity and jealousy finally become so intense that they

conspire to effect his ruin by accusing him of selling to a foreign power

the secrets of the national defence. It is arranged that a compromising

letter imitating the handwriting of Dormelles and addressed to a foreign

military _attaché_ shall be placed in the secret archives, where it will

fall into the hands of the head of the department Lieutenant-Colonel

Alleward. Dormelles is arrested and thrown into the prison Cherche-Midi,

and at the same time Daniel causes a violent article to be inserted in a

newspaper _Le Vigilant_, charging him with high treason, and seeking to

excite public opinion against him. This article concludes with the false

statement that a search in Dormelles’ department had led to the discovery

of important documents referring to the fabrication of smokeless powder,

and that thereupon Dormelles had confessed his guilt. He is then sentenced

to the galleys, but his betrothed is convinced of his innocence and

finally succeeds in detecting and exposing the forgeries.

Lieutenant-Colonel Alleward is arrested and commits suicide in prison,

not with a razor like Henry, but with a revolver. One scene in the novel

describes the appearance of a veiled lady on the very spot near the Champs

Elysées, where the mysterious veiled lady is said to have appeared to

Esterhazy three years later and for much the same purpose. The French

minister of war, Mercier, was forced to proceed against Dreyfus by the

_Libre Patrole_, which published lies about his confession, as _Le

Vigilant_ did about Dormelles. The only rational explanation of this

remarkable concurrence of events, as they are narrated in the fiction and

afterwards occurred in fact, is that the method of conducting the

conspiracy against Dreyfus and the possibility of accomplishing it were

suggested by Letang’s story, although the conspirators doubtless did not

anticipate that the logic of events would render the results of their

falsehoods and forgeries as fatal to them as they were to their prototypes

in the novel. Every scoundrel is firmly convinced that he can pattern

after his precursors in villainy, avoid their mistakes and commit the same

crime without incurring the same penalty.

That paroxysms of epilepsy, hysterics and various forms of frenzy are

contagious and may be easily communicated to nervous persons, who witness

them, has been clearly proved. Vicious passions obey the same law of

imitation even in a still higher degree than tender emotions and nervous

diseases, and more than two centuries ago the illustrious jurisconsult,

Samuel Pufendorf, laid down the general principle that he who for the

first time commits a crime liable to spread by contagion and to become

virulent, should be punished with extreme severity, in order that it may

not infect others and create a moral pestilence.

The hemp cure is always a harsh cure, especially where there is any doubt

as to the offender’s mental soundness; but in view of the increasing

frequency with which atrocious and wilful crime shelters itself under the

plea of insanity and becomes an object of misdirected sympathy to maudlin

sentimentalists, the adoption of radical and rigorous measures in the

infliction of punishment were perhaps an experiment well worth trying.

Meanwhile, let the psychiater continue his researches, and after we have

passed through the present confused and perilous period of transition from

gross and brutal mediæval conceptions of justice to refined and

humanitarian modern conceptions of justice, we may, in due time, succeed

in establishing our penal code and criminal procedure upon foundations

that shall be both philosophically sound and practically safe.

APPENDIX

CONTAINING ORIGINAL DOCUMENTS

A

TESTIMONIALES ET REASSUMPTUM

Anno domini millesimo quingentesimo octuagesimo septimo et die decima

tertia mensis aprilis comparuit in bancho actorum judicialium episcopatus

Maurianne honestus vir Franciscus Ameneti scindicus et procurator

procuratorioque nomine totius communitatis et parrochie Sancti Julliani

qui in causa quam pretendunt reassumere prosequi aut de novo intentare

coram reverendissimo domino Maurianne episcopo et principe seu reverendo

domino generali ejus Vicario et Officiali contra Animalia ad formam

muscarum volantia coloris viridis communi voce appellata Verpillions seu

Amblevins facit constituit elegit et creavit certum ac legitimum

procuratorem totius dicte communitatis et substituit vigore sui

scindicatus de quo fidem faciet egregium Petremandum Bertrandi causidicum

in curiis civitatis Maurianne presentem et acceptantem ad fines coram

eodem reverendissimo Episcopo et ejus Vicario generali comparendi et

faciendi quicquid circa negotiis ejusdem cause spectat et pertinet et

prout ipse scindicus facere posset si presens et personaliter interesset

cum electione domicillii et ceteris clausulis relevationis ratihabitionis

et aliis opportunis suo juramento firmatis subque obligatione et hypotheca

bonorum suorum et dicte communitatis que conceduntur in bancho die et anno

premissis.

ORDINATIO

Anno domini millesimo quinquagesimo octuagesimo septimo et die sabatti

decima sexta maii comparuerunt judicialiter coram nobis Vicario generali

Maurianne prefato Franciscus Ameneti conscindicus Sancti Julliani cum

egregio Petremando Bertrandi ejus procuratore producens testimoniales

constitutionis facte eidem egregio Bertrandi die tertia decima aprilis

proxime fluxi petit sibi provideri juxta supplicationem nobis porrectam

parte scindicorum et communitatis Sancti Julliani exordiente _Divino

primitus implorato auxilio_ signatum _Franciscus Faeti_ contra Animalia

bruta ad formam muscarum volantia nuncupata Verpillions producens etiam

acta et agitata superioribus annis coram predecessoribus nostris maxime de

anno 1545 et die vicesima secunda mensis aprilis unacum ordinatione nostra

lata octava maii millesimo quingentesimo octuagesimo sexto et ne contra

Animalia ipsis inauditis procedi videatur petunt sibi provideri de

advocato et procuratore pro defensione si quam habeant aut habere possent

dictorum Animalium se offerentes ad solutionem salarii illis per nos

assignandi. Inde et nos Vicarius generalis Maurianne ne Animalia contra

que agitur indeffensa remaneant deputamus eisdem pro procuratore egregium

Anthonium Fillioli licet absentem cui injungimus ut salario moderato

attenta oblatione conquerentium qui se offerunt satisfacere teneatur et

debeat ipsa Animalia protegere et defendere eorumque jura et ne de

consilio alicujus periti sint exempta ipsis providemus de spectabili

domino Petro Rembaudi advocatum (_sic_) cui similiter injungimus ut debeat

eorum jura defendere salario moderato ut supra. Quamquidem deputationem

mandamus eis notifficari et ipsis auditis prout juris fuerit ad ulteriora

providebitur. Quo interim visa per nos quadam ordinatione fuit fieri

certas processiones et alias devotiones in dicta ordinatione declaratas

quas factas fuisse non edocetur ideo ne irritetur Deus propter non

adempletionem devotionum in ipsa ordinatione narratarum dicimus ipsas

devotiones imprimis esse fiendas per instantes et habitatores loci pro quo

partes agunt quibus factis postea ad ulteriora procedemus prout juris

fuerit decernentes literas in talibus necessarias per quas comittimus

curato seu vicario loci quathenus contenta in dicta ordinatione in prono

ecclesie publice declarare habeat populumque monere et exortari ut illas

adimpleant infra terminum tam breve quam fieri poterit et de ipsis

attestationem nobis transmittere. Datum in civitate Sancti Johannis

Maurianne die anno permissis.

MEMORIALE

Anno premisso et die trigesima mensis maii comparuerunt judicialiter coram

nobis Vicario generali Maurianne prefato honestus Franciscus Ameneti

conscindicus jurat venisse cum egregio Petremando Bertrandi ejus

procuratore producit et reproducit supplicationem nobis porrectam

retroacta et agitata contra eadem Animalia maxime designata in memoriali

coram nobis tento decima sexta maii literas eodem die curato Sancti

Julliani directas unacum attestatione signata _Romaneti_ qua constat

clerum et incolas dicti loci proposse satisfecisse contentis in eisdem

literis ad formam ordinis in ipsis designato petit sibi juxta et in actis

antea requisita provideri et alia uberius juxta cause merita et inthimari

egregio Fillioli procuratori ex adverso. Hinc egregius Fillioli procurator

dictorum Animalium brutorum petit communicationem omnium et singularum

productionum ex adverso cum termino deliberandi defendendi et participandi

cum domino advocato premisso. Indi et nos Vicarius generalis Maurianne

prefatus communicatione superius petita concessa partibus premissis diem

assignamus sabatti proximi sexta instantis mensis junii ad ibidem

judicialiter coram nobis comparandum et tunc per dictum egregium Fillioli

nomine quo supra quid voluerit deliberare et defendere deliberandum et

defendendum. Datum in civitate Maurianne die et anno premissis.

R. D. GENERALI VICARIO ET OFFICIALI EPISCOPATUS MAURIANÆ

Divino primitus implorato auxilio humiliter exponunt syndici totius

communitatis seu parrochie Sancti Julliani cæterique homines ac sua

interesse putantes et infrascriptis adherere cupientes quod cum alias ob

forte peccata et cætera commissa tanta multitudo bruti animalis generis

convoluntium vulgo tamen vocabulo Amblevini seu Verpillion dicti per

vineas et vinetum ipsius parrochie accessisset damna quamplurima ibi

perpetrantis folia et pampinos rodendo et vastando ut ex eis nulli saltem

pauci fructus percipi poterant qui juri cultorum satisffacere possint et

quod magis et gravius erat illa macula ad futura tempora trahendo vestigia

nulli palmites fructus afferentes produci poterant illi autem flagitio

antecessores amputare viam credentes prout divina prudentia erat credendum

porrectis precibus adversus eadem Animalia et in eorum defensoris

constituti personam debitis sumptis informationibus ac aliis

formalitatibus necessariis prestitis sententia seu ordinatio prolata

comperitur cujus et divinæ potentiæ virtute præcibus tamen et officiis

divinis mediantibus illud flagitium et inordinatus furor prefatorum

brutorum Animalium cessarunt usque ad duos vel circa citra annos quod

veluti priscis temporibus rediere in eisdem vineis et vineto et damna

inextimabilia et incomprehensibilia afferre ceperunt ita ut pluribus

partibus nulli fructus sperantur percipi possetque in dies deterius

evenire culpa forte hominum minus orationibus et cultui divino vacantium

seu vota et debita non vere et integre reddentium que tamen omnia divinæ

cognitioni consistit et remittenda veniunt eo quod Dei arcana cor hominis

comprehendere nequit.

Nihilominus cum certum sit gratiarum dona diversis diversimode fore

collata hominibus et potissimum ecclesiastico ordini ut in nomine Jesu et

virtute ejus sanctissime passionis possit in terris ligare solvere et

flectere iterum ad R. V. recurrentes prius agitata reassumendo et quatenus

opus fuerit de novo procedendo petunt in primis procuratorem aut

defensorem ipsis Animalibus constitui ob defectum præcedentis vita functi

quo facto et ut de expositis legitime constet debeatis inquisitiones et

visitationes locorum fieri per nos aut alium idoneum commissarium

cæterasque formalitates ad hæc opportunas et requisitas exerceri ipso

defensore legitime vocato et audito nec non aliter prout magis equum

visum et compertum de jure extiterit procedere dignetur ad expulsionem

dictorum Animalium via interdicti sive excommunicationis et alia debita

censura ecclesiastica et justa ipsius sanctas constitutiones ad quas et

divinæ clementiæ et mandatis suorum ministrorum se parituros offerunt et

submittunt omni superstitione semota quod si stricta excommunicatione

processum fuerit sunt parati dare et prestare locum ad pabulum et escam

recipiendos ipsis Animalibus quemquidem locum exnunc relaxant et declarant

prout infra et alias jus et justitiam ministrari omni meliori modo

implorato benigno officio.

FRAN. FAETI

Ego subsignatus curatus Sancti Julliani attestor quomodo sacro die

Penthecostes decima septima mensis maij anno domini millesimo

quingentesimo octuagesimo septimo ego accepi de manibus sindicorum

mandatum exortativum sive ordinationem R{di} generalis Vicarii et

Officialis curie diocesis Maurianne datum in civitate Sancti Johannis

decima sexta mensis may anno quo supra quod cum honore et reverentia juxta

tenorem illius die lune Penthecostes decima octava may in offertorio magne

misse parochialis populo ad divina audienda congregato publicavi idem

populum michi commissum ad contritionem suorum peccaminum et ad devotionem

juxta meum posse et serie monui processiones missas obsecrationes et

orationes in predicto mandato contentas per tres dies continuos videlicet

vicesima vicesima prima vicesima secunda predicti mensis cum ceteris

presbiteris feci in quibus processionibus scindici cum parrochianis

utriusque sexus per majorem partem circuitus vinearum interfuerunt

deprecantes Dei omnipotentis clementia pro extirpatione brutorum Animalium

predictas vineas atque alios fructus terre devastantium vulgariter

nuncupatas (sic) Verpilions seu Amblavins in predicto mandato mentionata

sive nominata in quorum fidem ad requisitionem dictorum scindicorum qui

hanc attestationem petierunt quam illis in exonus mei tradidi hac die

vicesima quarta may anno quo supra.

ROMANET

Franciscus de Crosa Canonicus et Cantor ecclesie cathedralis Sancti

Johannis Maurianne in ... et temporalibus episcopatus Maurianne generalis

Vicarius et Officialis dilecto sive vicario Sancti Julliani s ... in

domino. Insequendo ordinationem per nos hodie date presentium latam in

causa scindicorum Sancti Julliani agentium contra Animalia bruta ad formam

muscarum volantia coloris viridis nuncupata Verpillions supplicata per

quam inter cetera contenta in eadem dictum et ordinatum extitit devotiones

et processiones fieri ordinatas per ordinationem latam ab antecessore

nostro die octava maii anni millesimi quingentesimi quadragesimi sexti in

eadem causa in primis et ante omnia esse fiendas per instantes et

habitatores dicti loci Sancti Julliani. Igitur vobis mandamus et

injungimus quathenus die dominico Penthecostes in prono vestra ecclesie

parrochialis contenta in dicta ordinatione declarare habeatis populumque

monere et extortari ut illa adimpleant infra terminum tam breve quod fieri

poterit et de ipsis attestationem nobis transmittere. Tenor vero dicte

ordinationis continentis devotiones sequitur et est talis.

Quia licet per testes de nostri mandato et commissarium per nos deputatum

examinatos apparet Animalia bruta contra que in hujusmodi causa parte

prefatorum supplicantium fuit supplicatum intulisse plura dampna

insupportabilia ipsis supplicantibus que tamen dampna potius possunt

attribuenda peccatis supplicantium decimis Deo omnipotenti de jure

primitivo et ejus ministris non servientium et ipsum summum Deum

diversimode eorum peccatis non (_sic_) offendentium quibus causis

causantibus dampna fieri supplicantibus predictis non ut fame et egestate

moriantur sed magis ut convertantur et eorum peccata deffluant ut tandem

abundantiam bonorum temporalium consequantur pro substentatione eorum vite

vivere et post hanc vitam humanam salutem eternam habeant. Cum a principio

ipse summus Deus qui cuncta creavit fructus terre et anime vegetative

produci permiserit tam substentatione vite hominum rationabilium et

volatilium super terram viventium quamobrem non sic repente procedendum

est contra prefata Animalia sic ut supra damnificantia ad fulminationem

censurarum ecclesiasticarum Sancta Sede Apostolica inconsulta sive ab

eadem ad id potestatem habentibus superioribus nostris sed potius

recurrendum ad misericordiam Dei nostri qui in quacumque hora ingenuerit

peccata propitius est ad misericordiam. Ipsi quamobrem causis premissis et

alliis a jure resultantibus pronunciamus et declaramus inprimis fore et

esse monendos et quos tenore presentium monemus et moneri mandamus ut ad

ipsum Dominum nostrum ex toto et puro corde convertantur cum debita

contrictione de peccatis commissis et proposito confitendi temporibus et

loco opportunis et ab eisdem de futuro abstinendi et de cetero debite

persolvendum Deo decimas de jure debitas et ejus ministris quibus de jure

sunt persolvende eidem Domino Deo nostro per meritata sue sacratissime

passionis et intercessione Beate Marie Virginis et omnium Sanctorum ejus

humiliter exposcendo veniam et quibuscumque peccatis delictis et offensis

contra ejus majestatem divinam factis ut tandem ab afflictionibus

prefatorum Animalium liberare dignetur et ipsa Animalia loca non it ...

ipsis supplicantibus ceterisque christianis transferre et al ... secundem

ejus voluntatem et aliter exting ......... ..... eisdem supplicantibus uno

die dominico in offertorio ......... ut ipso die dominico ......

supplicantibus ...... ......... per circuitum vinearum ejusdem parrochie

...... et per loca cum aspersione aque benedicte pro effugandis prefatis

Animalibus tribus diebus immediate sequentibus significationem et

notificationem sic ut supra fiendas quibus processionibus durantibus

decantari et celebrari mandamus tres missas altas ante sive post quamlibet

earum processionum ad devot ... cleri et populi quarum prima primo die

decantabitur de Sancto Spiritu cum orationibus de Beata Maria. ... _Deus

Deus qui contritorum_ et _A cunctis nos quesumus Domine mentis et

corporis_ etc. et una pro defunctis secundo die decantatis de Beata Maria

Virgine cum orationibus Sancti Spiritus Beate Marie Virginis illis _Qui

contritorum_ et pro deffunctis. In eisdem processionibus supra fiendis

jubemus in eadem ecclesia genibus flexis dici et decantari integriter

_Veni Creator Spiritus_ quo hymno sic finito et dicto verceleto _Emitte

Spiritum tuum et creabuntur_ etc. cum orationibus _Deus qui corda

fidelium_ singulis diebus sic prout supra fiat proces ... decantando

septem psalmos penitentiales cum letaniis suffragii et orationibus inde

sequentibus mandamus moneri supplicantes prout supra ut in eisdem missis

processionibus et devotionibus sic ut supra fiendis ad minus d ... de

qualibet domo devote intersint dicendo eorum Fidem catholicam et alias

devotiones et orationes ...... cum fuerit humiliter et devote preces et

effundendo Domino Deo nostro ut per merita sue sanctissime passionis et

intercessionem Beatissime Virginis Marie et omnium Sanctorum dignetur

expellere ipsa Animalia predicta a prefatis vineis ut de fructus earumdem

non corrodant nec ...... et ibidem supplicantes a cunctis alliis

adversitatibus liberare ut tandem de eisdem fructibus debite vivere

possint et eorum necessitatibus subvenire et semper in omnibusque

glorificare laudare eumdem Dominum et Redemptorem nostrum et in eodem

fidem et spem nostram totaliter cohibenda a devastatione prefatarum

vinearum et nos liberare a cunctis alliis adversitatibus dummodo sic ut

supra ejus mandata servaverimus et hoc absque allia fulminatione

censurarum ecclesiasticarum quas distulimus fulminare donec premissis

debite adimpletis et alliud a prefatis superioribus nostris habuerimus in

mandatis literas quatenus expediat in exequutionem omnium et singulorum

premissorum decernentes ...... Post ...... insertionem dicte ordinationis

dicti scindici Sancti Julliani petierunt sibi concedi literas quas

concedimus datas in civitate Sancti Johannis Maurianne die decima sexta

mensis maii millesimo quingentesimo octuagesimo septimo.

Franciscus de Crosa Vic.{s} et Off.{s} gen.{lis} Maurianne.

FAURE

Per eumdem R. D. Maurianne generalem Vicarium et Officialem.

(_locus sigilli._)

MEMORIALE

Anno premisso et die quinta mensis junii comparuerunt judicialiter coram

nobis Vicario generali Maurianne Franciscus Ameneti consindicus Sancti

Julliani asserens venisse a loco sancti Julliani ad fines remittendi in

manibus egregii Anthonii Fillioli procuratoris Animalium brutorum cedulam

signatam _Rembaud_ producendam pro deffensione dictorum Animalium

quiquidem egregius Fillioli produxit realiter eandem cedulam incohantem

_Approbando_ etc. signatam _Rembaud_ dicens concludens et fieri requirens

pro ut in eadem cedula continetur. Hinc et egregius Petremandus Bertrandi

procurator dictorum sindicorum Sancti Julliani agentium petiit copiam

dicte cedule. Inde et nos Vicarius generalis Maurianne prefatus partibus

premissis diem assignamus veneris proximam duodecimam presentis mensis

junii nisi etc. ad ibidem coram nobis comparendum et tunc per dictum

egregium Bertrandi nomine quo supra quid voluerit deliberare deliberandum

eidem concedendo copiam dicte cedule per eum requisitam. Datum in civitate

Sancti Johannis Maurianne die et anno premissis.

COPIA CEDULE

Approbando et in quantum de facta in medium adducendo ea que hoc in

processu antea facto fuerunt et potissimum scedulam productam ex parte

egregii Baudrici procuratoris Animalium signatam _Claudius Morellus_

egregius Anthonius Fillioli procurator et eo nomine a reverendo domino

Vicario constitutus occasione tuendorum ac deffendendorum Animalium de

quibus hoc in processo agitur ut in actis ad quæ impugn ...... super

relatio habeatur et brevibus agendo ac realiter deffendendo excipit et

opponit ac multum miratur de hujusmodi processu tam contra personas

agentium quam contra insolitum et inusitatum modum et formam procedendi de

eo saltem modo quo hactenus processum fuit maxime cum agitur de

excommunicatione Animalium quod fieri non potest quia omnis excommunicatio

aut fertur ratione contumaciæ _cap. primo_ et ibi Gr. _De sententiis

excommunicationis lib._ 6. at cum certum est dicta animalia in contumacia

constitui non posse quia legitime citari non possunt per consequens via

excommunicationis Agentes uti non possunt nec debent eo maxime quod Deus

ante hominis creationem ipsa Animalia creavit ut habetur Genesi ib.

_Producat terra animam viventem in genere suo jumenta et reptilia et

bestias terre secondum species suas benedixitque eis dicens crescite et

multiplicamini et replete aquas maris avesque multiplicentur super terram_

quod non fecisset nisi sub spe quod dicta Animalia vita fruerentur tum

quod ipse Deus optimus maximus creator omnium Animalium tam rationabilium

quam irrationabilium cunctis Animalibus suum dedit esse et vesci super

terram unicuique secondum suam propriam naturam certum est et potissimum

plantas ad hoc creavit ut animalibus deservirent est enim ordo naturalis

quod plante sunt in nutrimentum Animalium et ...... quedam in nutrimentum

aliorum et omnia in ...... hominis. Genes: 9: ibi _Quasi olera virentia

tradidi vobis omnia a Deo_ quod dicta Animalia de quibus Adversantes

conqueruntur modum vivendi a legi ordinatum non videtur egredi tum quia

bruta sensu et usu rationis carentia que non secondum legem divinam

gentium canonicam vel civilem sed secondum legem naturæ primordialis qua

Animalia cuncta docuit vivere solo instinctu naturæ vivunt et ut ait

Philosophus _actus activorum non operantur in patienti_ ...... tum quia

jura naturalia sunt immutabilia § _Sed naturalia Instit.: de jur natur.

gent. et civili._ ergo cum dicta Animalia solo instinctu naturæ dicantur

per consequens excommunicanda non veniunt. Et quamvis dicta Animalia

hominibus subjecta esse dicantur ut habetur Ecclesiast: 17. ibi _Posuit

timorem illius super omnem carnem et bestiarum ac volatilium_ non idcirco

adversus talia Animalia licet subjecta uti non debent excommunicatione nec

ullo modo veniunt petita executioni mandanda saltem modo petito presertim

cum ratio et æquitas dicta Animalia non regat. Et licet juribus divino

antiquo civili et canonico promulgatum legitur _Qui seminat metet_ ut

habetur Esai 37 ibi. _In anno autem tertio seminate et mettete et plantate

vineas et commedite fructum earum_ non tamen cequitur (_sic_) quin dicta

Animalia plantis non utantur quia sunt irrationabilia et carentia sensu

neque ea posse dicernere quæ sunt usui hominum destinata vel non

certissimum est quia solo instinctu nature ut supra dictum est vivunt non

idcirco necesse habent Agentes adversus dicta Animalia uti

excommunicatione sed ...... peccata eorum universus populus presertim quem

hujusmodi flagella affligunt et prosequuntur et pœnitentiam agat exemplo

Ninivitarum qui ad solam vocem Jone prophete austeriter pœnitentiam

egerunt ad mittigandam et placandam iram Dei. Jon. 3. veniat populus et

imploret misericordiam Dei optimi et sic maximi ut sua sancta gratia et

per merita sanctissimæ passionis excessum dictorum Animalium compessere

et refrenare dignetur et hoc modo dicta Animalia e vineis ejicient et non

eo modo quo procedunt. Quibus universis consideratis evidentissime patet

dicta Animalia e vitibus seu e vineis ejicienda non esse attento quod solo

instinctu naturæ vivunt et ita per egregium Anthonium Fillioli eorumdem

Brutorum legittimi actoris fieri instatur et ab ipso petitur ipsum

monitorium requisitum in quantum concernit dicta Animalia revocari et

annullari nec aliquo modo consentiendo quod dictum monitorium eis

concedatur nec etiam aliqui visitationi vinearum ut est conclusum per

Agentes in eorum supplicatione protestando de omni nullitate et hoc omni

meliori modo via jure ac forma salvis aliis quibuscumque juribus ac

deffentionibus competentibus aut competituris humiliter implorato benigno

officio judicis.

PETRUS REMBAUDUS

MEMORIALE

Anno premisso et die duodecima mensis junii comparuerunt judicialiter

coram nobis Vicario generali Maurianne prefato egregius Petremandus

Bertrandi procurator dictorum Agentium petens alium terminum. Hinc et

egregius Anthonius Fillioli procurator dictorum Animalium petiit viam

precludi parti quidquiam ulterius deliberandi et producendi. Inde et nos

Vicarius generalis Maurianne prefatus partibus premissis diem assignamus

veneris proximam decimam nonam presentis mensis nisi etc. ad ibidem

judicialiter coram nobis comparendum et tunc per dictum Bertrandi nomine

quo suppra quid voluerit precise deliberare deliberandum. Datum Maurianne

die et anno premissis.

MEMORIALE

Anno premisso et die veneris decima nona mensis junii preassignata

comparuerunt judicialiter coram nobis Vicarium generalem Maurianne prefato

egregius Petremandus Bertrandi procurator Sindicorum Sancti Julliani

Agentium producens cedulam incohantem _Etiam si cuncta_ et signatam

_Franciscus Fay_ dicens concludens et fieri requirens pro ut et

quemadmodum in eadem cedula continetur.

Hinc et egregius Anthonius Fillioli procurator dictorum Animalium

conventorum petiit copiam dicte cedulæ cum termino deliberandi et

respondendi.

Inde et nos Vicarius generalis Maurianne prefatus copia prepetita concessa

partibus premissis diem assignamus veneris proximam vigessimam sextam

hujus mensis junii nisi etc. ad ibidem judicialiter coram nobis

comparendum et tunc per dictum Fillioli nomine quo supra quid voluerit

deliberare deliberandum. Datum Maurianne die et anno premissis.

MEMORIALE

Anno premisso et die sabatti vigesima septima mensis junii subrogata ob

diem feriatum intervenientem comparuerunt judicialiter coram nobis Vicario

generali prefato Catherinus Ameneti consindicus Sancti Julliani jurat

venisse cum egregio Petremando Bertrandi ejus procuratore producens

realiter cedulam signatam _Fay_ dicens concludens prout in eadem cedula

continetur. Hinc et egregius Fillioli procurator Animalium petens copiam

cedule cum termino deliberandi. Inde et nos Vicarius prefatus copia

prepetita concessa partibus premissis diem assignamus sabbati proximi

quartam instantis mensi jullii nisi etc. ad ibidem judicialiter coram

nobis comprehendum est tunc per dictum egregium Fillioli quid voluerit

deliberare deliberandum. Datum Maurianne die et anno premissis.

COPIA CEDULÆ

Etiamsi cuncta ante hominem sint creata ex Genesi non sequitur laxas

habenas concessas fore immo contra ut ibidem colligitur et apud D... in I.

par. q. 26. ar. I. et psal. 8. Corin. 5. hominem fore creatum ac

constitutum ut cœteris creaturis dominaretur ac orbem terrarum in æquitate

et justitia disponeret. Non enim homo contemplatione aliarum creaturarum

habet esse sed contra. Nec reperitur illam dominationem circa bruta

animantia ac eorum respectu suscipere limitationem verum in divinis

cavetur omne genuflecti in nomine Jesu.

Sed cum circa materiam majores nostri satis scripserint in actis

reassumptis et nihil novi adductum ex adverso inveniatur frustra

resumerentur. Unde inherendo responsis spectabilis domini Yppolyti de

Collo et postquam constat fore satisffactum ordinationi nihil est quod

impediri possit fines supplicatos adversus Animalia de quorum conqueritur

ad quod concluditur ac justitiam ministrari omni meliori modo implorato

benigno officio.

FRANC FAETI

MEMORIALE

Anno premisso et die quarta mensis jullii comparuerunt judicialiter coram

nobis Vicario generali Maurianne prefato egregius Anthonius Fillioli

procurator dictorum Animalium producens cedulam incohantem _Licet multis_

signatam _Rembaudi_ dicens et concludens prout in eadem cedula continetur

hinc et egregius Petremandus Bertrandi procurator dictorum Agentium petit

copiam cedule cum termino deliberandi. Inde et nos Vicarius generalis

Maurianne prefatus copia prepetita concessa partibus premissis diem

assignamus sabbati proximam undecimam presentis mensis jullii nisi etc. ad

ibidem judicialiter coram nobis comparendum et tunc per dictum egregium

Bertrandi nomine quo supra quid voluerit deliberare deliberandum. Datum

Maurianne die et anno premissis.