Mediæval and Modern Punishment

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 nowadays is to regard men as brutes, acting automatically or under an insane and irresistible impulse to evil, and to plead this proclivity, in prosecutions for murder, as an extenuating circumstance, and even as a ground of acquittal.

Mediæval jurists and judges did not stop to solve intricate problems of psychiatry. The puzzling knots which we seek painfully to untie, and often succeed only in hopelessly tangling, they boldly cut with the executioner’s sword. They dealt directly with overt acts and meted 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 quality 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. Phlebotomania was epidemic ; blood-letting was regarded as the infallible cure for all the ills that afflicted the human and social body. Doctors of physic and of law vied with one another in applying this panacea. The red-streaked pole of the barber-surgeon and the reeking scaffold, symbols of venesection, were the appropriate signs of medicine and jurisprudence. Hygeia and Justitia, instead of being represented by graceful females feeding the emblematic serpent of recuperation or holding the well-adjusted scales, would have been fitly typified by two enormous and insatiable leeches gorged with blood.

The overt act alone was assumed to constitute the crime, so that the mental condition of the criminal was never taken into account. It is remarkable how long this crude and superficial conception prevailed, and how very recently even the first attempts were made to establish penal codes on a philosophical basis. The punishableness of an offense is now generally recognized as depending solely upon the sanity of the offender. Crime, morally and legally considered, presupposes perfect freedom of 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 a 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 puniuntur, for the most part blindly and brutally applied.

Mancini, Zuppetta, and other Italian jurists have devoted themselves with especial zeal and acuteness to the study of obscure and perplexing problems of psycho - pathological jurisprudence, and have drawn nice 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 and functionally normal in its operation. It is not merely a question of raving madness or driveling idiocy, perceivable by 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 Zuppetta, are exculpatory, then “partial vitiation of mind ” and “ semi-irresistible force ” are entitled to the same consideration. There are states of being which are mutually contradictory and exclusive, and cannot coexist, such as life and death. A partial state of life and death is impossible; such expressions as half alive and half dead are purely rhetorical; taken literally, they are simply absurd. It is not so, however, with states of mind. The intellect, the first condition of accountability, may be perfectly clear, manifesting itself in its native fullness and power, or it may be partially obscured. So, too, the will, the second condition of accountability, may assert itself with complete freedom and untrammeled force, or it may act under stress and with imperfect volition. Physical violence and mental pressure are not the less real because they 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 well 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 distinctness and intensity in all cases : sometimes they are scarcely perceptible; again, they verge upon “privation of mind ” and “ irresistible force; ” and it is the duty of the judge to adjust the penalty to these gradations of guilt.

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 crimes to symptoms and 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 incitements, to be consigned to the sympathetic care of the psychiater.

Italian jurisprudents have been foremost and have gone farthest in this reaction from mediæval conceptions of crime and its proper punishment. This 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 or mars the pleasure of the moment, are apt to degenerate into shallow sentimentality and sickly sensibility, thereby enfeebling and perverting the moral consciousness and the strict sense of justice. To minds thus constituted the cool and deliberate condemnation of a human being to the gallows is an atrocity, in comparison with which mere killing in the heat of passion or under strong provocation seems a venial transgression. This popular sympathy with the guilty living man, who is about to suffer, 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 meshes of the penal code, and has finally provided in psycho-pathology a scientific basis for this pitying and palliating feeling to plant itself upon.

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 researches 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 comparatively recent period, one need merely 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 ; and these changes have been effected in spite of the preponderance of Prussia, which has always exerted her influence in favor of severe penalties, and shown slight consideration for individual frailties and criminal idiosyncrasies.

The chief difficulty encountered by framers and administrators of penal laws in this respect 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 to detect it in its subtler forms, or to draw a bard and fast line between sanity and insanity. An eminent alienist affirms that very few of the persons whom we meet in the counting-room or on the street, 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 which 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 monomania.

A madman, says Coleridge, is one who “ mistakes his thoughts for persons and things.” But here the frenzies of the lunatic intrench on the functions of the poet, who, “ of imagination all compact,” takes his fantasies 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 and independent existence, which in the infancy of the race peopled heaven and earth with phantoms, and still croons over our cradles and babbles of brownie and fairy in our nurseries and chimneycorners. No progress of science can wholly eradicate this tendency to mythologize. In the absence of better materials, it seizes upon the most prosaic of practical improvements, and clothes them with poetry and legend. The imaginative child of New York or Boston converts the modern gas-pipe into the abode of a dragon, which puts forth its fiery tongue when the knob is turned. The Suabian peasant still regards the railroad as a device of the devil, and believes that his satanic majesty is by contract entitled to a tollage of one passenger on every train. As the church has uniformly consigned great inventors to the infernal regions, the prince of darkness could have had no lack of ingenious wits to advise him in such matters.

Another consideration, which did not disturb the minds of mediæval jurists, nor stay the hand of strictly retributive justice, is in 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 conclusively 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, season, months, days, state of crops; domestic, social, political, financial, economical, geographical, and meteorological influences; sun, moon, and stars, all work together, impelling the individual to self-destruction. 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 prone to it. Suicide, in fact, is the resultant of a vast number of complicated and far-reaching forces, which we can neither trace nor measure. To a very considerable degree, it is a question of environment in the broadest sense of this term; “ an effect,” says Morselli, “ of the struggle for existence and of human selection, working according to the laws of evolution among civilized peoples.” The same is true of crime.

The recent growth of sociology and especially the scientific study of the laws of heredity also tend, by exciting an intelligent and philosophic interest in 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, affected by these speculations and honestly endeavoring to make an ethical or penal application of them, to come to a prompt and practical conclusion in any given case:

“ And thus 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 long 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 made both in ethics and in jurisprudence, and determines our moral judgments and judicial decisions. Yet the chief elements which enter into the formation of a person’s character lie beyond his control, or even his consciousness, and in many cases have done their work before his birth. Besides, evil propensiies and criminal designs are punishable only when embodied in overt acts. The law cannot deprive a man of life or liberty merely because he is known to be vicious and depraved. There are also instances oil record in which it is impossible to trace the culpable act to any marked corruption of character.

The recent death of an inmate of a Genevan prison calls to mind a trial which took place about sixteen years ago, and which deservedly ranks high among the causes célèbres of the present century, both as a legal question and a problem of psycho-pathology.1 Marie Jeanneret, a Swiss nurse, 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 towards her victims, and nursed them with tender care and 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 pecuniary loss by the death of her patients. The testimony of physicians and alienists furnished no evidence of insanity. 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 answering with the greatest clearness and presence of mind 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’esp߰ce 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 also wholly inconsistent with the general character of the indictee.

Indeed, the persistent and pitiless perpetration of this one sort of crime by Marie Jeanneret, 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 agent. M. Zurlinden, the counsel for the defendant, dwelt with emphasis upon this mysterious phase of the subject, 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 Marie Jeanneret was sentenced to twenty years of hard labor.

After fifteen years’ imprisonment the convict died. During this whole period she showed not only great intelligence and integrity, but also remarkable kindness and helpfulness towards all with whom she came in contact. She instructed her fellow-convicts in needlework 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 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 aforementioned, in which the particular crime, so far from being symptomatic of the general character, stands out as an isolated and ugly excrescence, an appalling abnormity?

There hardly can be a doubt that the Swiss nurse was a toxicomaniac, and that she had thus become infatuated with poisons partly by watching their effects on her own system, and partly by reading about them 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 endeavoring to obtain atropine from atropa belladonna. It was especially this terrible poison of which she appears to have had an insane desire to test the virtues. She had read and heard of devoted scientists and illustrious physicians who had experimented on themselves and on their disciples, and become the benefactors of mankind ; why should she not adopt the same method in the pursuit of truth ? However preposterous such reasoning on her part may appear, it offers the only theory adequate to explain all the facts, and to account for the almost incredible union of contradictory qualities in her character. The enthusiasm of the experimenter overbore in her the natural sympathy of the woman. She observed the writhings of her poisoned victims with as “much delight ” as Professor Mantegazza studies the physiology of pain in the animal “ 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 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 have taken rank in the scientific world with Brachet and Magendie, and been admitted with honor to the Academy, instead of being thrust ignominiously into prison.

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. The man who commits murder under the impulse of morbid jealousy, 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 directly proceeds. No chain is stronger than its weakest link ; and this is as true of psychical as of physical 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.

It is no easy task for penal legislation to adjust itself to the wide range and nice distinctions of modern psychopathology ; nor is it really 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. 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 reënact 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. Nor is this a merely hypothetical case. It is a well-established fact that the partially insane, especially those affected with “ moral insanity,” 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 that a belief in the certainty of punishment would have acted as an effective deterrent.

The hemp cure is always a harsh cure, especially where there is any doubt as to the offender’s mental condition ; but in view of the increasing frequency with which atrocious and willful crime shelters itself under the plea of insanity, and becomes an object of sympathy to maudlin sentimentalists, the adoption of this rigorous measure were perhaps an experiment well worth trying. Meanwhile, let the psychiater continue his researches, and after we have passed 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.

E. P. Evans.

  1. At the time when this trial occurred, I directed attention to the peculiar and perplexing features of the case in The Nation for January 7, 1869.