The more deeply learned the jurist in the classical lore of his profession—mere abstraction of reason, with nothing but a view to the juridical bearings involved—the less, possibly, is he qualified to estimate the character of the accused; civil law concerning itself least of all things with the physical, or moral, nature of the individual. It entirely ignores the personal condition of the criminal; the character of his environments, his heredity and moral nature; and confines its attention solely to the legal status of the deed and the degree of punishment demanded. Therefore, should criminal Judges alone deal with human crime; and civil Judges, with civil offences. But, more than all, should psychological Medicine prepare herself for the task, to which, as all indications show, "she will be more and more called in the future administration of criminal law."1
There has been an undoubted failure in the primitive attempt, on the part of the medical profession, to harmonize the legal question of criminal responsibility with ascertained medical facts; and this failure should, and doubtless will, direct attention in the future to the possibility of reversing the proposition, and making medical facts the stepping-stones to criminal responsibility. It will be easily apparent that this is the chief end aimed at in this postscript of my recent sexual study. The law of retaliation is barbarous at the best; but to make it a part of medical therapeutics, as it has always been of social legislation, to the extent that even as late as the seventeenth century, corpses were publicly tried and executed, is to stultify human intelligence; and justify the vigor with which Tarde, and other thinking physicians, have attacked this blind relic of primitive barbarism. At the International Congress of Forensic Medicine, Paris, 1889, it was enacted that "to guarantee the interests of society, and of the accused, in all medicolegal investigations, at least two experts should be employed; these to be appointed by the judge;" and it is safe to predict that the adoption of this "reasonable reform," as Ellis well calls it ("The Criminal," p. 360), shall become a part of all future criminal procedure.
1 Austin Flint, presidential address on "The Coming Hole of the Medical Profession in the Scientific Treatment of Crimes and Criminals," New York State Med. Association. Quoted from H. Ellis, date not given.
Although I hare not yet been privileged to see it, I may hope that the new Federal Criminal Code, authorized in April, 1906, by the House Committee on Revision of Laws, may contain some provisions, very urgently needed, on this and other matters.
If common sense did not pomt to the propriety of assigning to each individual in society the conduct of those matters which pertain to his special vocation, or trade, which he is supposed best to understand, a few instances will suffice to demonstrate its advisability. Suppose a consumptive, staggering on the verge of death, should be brought into court on a charge of rape. Who knows, save the physician, the pathological sexual hyperesthesia which this disease so strangely induces, or the extent to which the brain has suffered by tubercular infiltration? Surely not the judge; and still less the jury (see ante, p. 200). Or suppose a girl, religiously wrought, commit a sexual offence, as is not uncommon; do the law-books teach, or does the experience of the laity suggest, those subtle psychological processes by which religious exaltation passes into sexual exaltation, the nun becoming a prostitute, and the pure-minded maiden masturbating herself with a crucifix to sanctify the adt (see Savage, "Insanity," 1886; Archiv. de Neurologic. 1897). Should a great genius (Michelangelo), lifted by the idealism of his art far above the ordinary atmosphere of human conditions, be judged by the legal standards which apply to the plowman and the artisan? Or "Dr. Mary Walker," Oscar Wilde, "Jack the Ripper," and the man who steals your pocket-book, be accorded a treatment, and punishment, by the canons of justice, differing in degree only, but not in kind?
In anomalies of organic central constitution, of neuropathic temperament, or of predisposition, such, for instance, as those of radical sexual inversion or perversion, there are considerations involving the point of criminal responsibility which, so far from entering into the equipment of the ordinary busy jurist, will sometimes baffle even the profoundest knowledge and experience of the professed psychologist.
When we invade the domain of instinctive beginnings, in sexual as well as other human propensities, we find ourselves on too misty and uncertain ground for the dogmatism of law. Only when we recognize that the average criminal is a person more or less congenitoMy abnormal, insensible to those forms of stimuli which ordinarily move the preponderant mass of society, and unduly susceptible to his own, shall we arrive at rational concepts as to his care and treatment. For, although Lombroso, Letoumeau.Garo-falo and others spent much time and thought in formulating a " criminal type," and while no man who sympathizes with the arduous, patient, and frequently thankless labors of the anthropologist, least of all the present writer, cares to undervalue those labors, it must still be borne in mind that there are probably as many criminal types as there are individuals in society; and that every man is, under certain circumstances, a potential criminal. It is well known that the greatest crimes are committed by those who do not conform to the so-called animal type; and that many of the latter type confine themselves almost exclusively to the perpetration of only minor offences. Dally maintained that the criminal and the lunatic are identical; both equally irresponsible, and both demanding a similar treatment.1 Prosper Lucas showed how deeply rooted in the human organism are the morbid tendencies to vice and crime;1 and Morel confirmed the prior conclusions of Lelut and Voisin as to the average criminal's defects of cerebral organization;1 but it was Despine who found the right path, when he invaded the domain of psychology in quest of criminal beginnings.* In occupying himself with the "insanity of the sane" (the "moral madness of social delinquents), while perpetrating a paradox, since madness, being irresponsible, can know neither morality nor immorality, he nevertheless strengthened the later proposition of Maudsley that the criminal class constitutes a degenerate, or morbid, variety of mankind, marked by peculiarly low physical and mental characteristics.1
As to the so-called "stigmata of degeneration," few persons stop to consider just what such a vague generalization means. "When we are brought face to face with a number of well-defined abnormalities in an individual " (see ante, p. 295), " though they may," as I have stated," have an hereditary basis, they are quite as likely to be the result of simple obsession from without; and, in any case, there can be no greater tendency in the parent impulse to manifest itself in increasingly concrete forms, than to become diffused into diminishing minor abnormalities; the suggestion of Nacke, that an inverted (sexual) impulse is an obsession, developing from a neurasthenic root, appealing to the mind with a considerable degree of philosophic force." Thus, as we have seen, there is a long list of sexual abnormalities which are purely psychical: eviration, defemination, androgyny, gynandry, normal male homosexuality, the peculiar transformatio sexus of the Scythians, etc. (see pp. 295, 296), in which physical functions play not the slightest part; to which Lombroso's methods do not in anywise apply; and which it would be little less than asinine stupidity to treat as ordinary cases of acquired or congenital vice. And yet, in the inscrutable wisdom of the law—that "rule of civil conduct prescribed by the law-making power of the State" (Kent's Commentaries, 447), that "perfection of human reason" (Bacon), many of them are so treated; our prison-pens becoming, thereby, the asylums and sanitariums of a civilization little, if any, better than primitive barbarism in this respect.