The Criminal Prosecution and Capital Punishment of 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 resolutionIs 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.