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Benedikt, viz. that the brains of habitual criminals are characterized by a defective gyrus development, and by a tendency of the main fissures to become confluent, instead of remaining, as in the normal brain, more or less independent of each other. He also professes to have discovered in the specimens of criminal brains examined by him, a retrograde type, that is, that they exhibit many anatomical features which belong to the lower mammals, and which are not present in the normal human brain. Professor Benedikt's statements have been criticized adversely by many subsequent inquirers, amongst others by Professor Donaldson of America, and, in particular, by Professor Lucchini of Parma, who has made a most exhaustive and elaborate examination of the brains of criminals (Cervelli di Delinquenti, Parma, 1895). The only thing, I think, which appears to be well established is, that more anomalies are found in the brains of habitual criminals than in those of normal individuals; but there does not appear to be any constant feature which distinguishes the criminal from the normal brain, or any configuration or characteristic which indicates a disposition to any particular form of crime. I should myself be inclined to think that the habitual criminal is the resultant of a great many factors rather than the necessary consequence of any specific cerebral configuration."
A very suggestive pamphlet written by Dr. Austin Flint, of New York, was published at Concord in 1895. It is a reprint of an address delivered by him as President to the New York State Medical Association. I venture respectfully to dissent from some of the learned writer's opinions and inferences. But, at page 13, he concludes a criticism of the Lombrosist doctrine, that a criminal without certain physical abnormalities is not a born criminal, with the assertion that physical abnormalities even with criminal ancestry, are never in themselves absolute evidence of criminality; and then, in two admirably terse and clear
sentences, he proceeds to demolish (as it seems to me) the evidential basis of the theories to which I have referred :
“The weakness in the position that there are any physical tests for criminality is twofold. There is no fixed normal standard of comparison ; and the exceptions in which physical peculiarities assumed to be characteristic of criminality exist in normal individuals are very frequent.”
Surely the truth is that, while it may be supposed that there are physical influences, such as the still obscure and mysterious operation of heredity, which may affect the human temperament, a sane man is not merely a collection of organs, of which thought, feeling, and will are some of the functions, but is an intelligence with organs; a composite being, in whom spirit, soul, and body, act and react upon each other, but who is capable of moral choice and selfcontrol; for whose criminal wrong-doing Justice, while she gives due weight in the degree and mode of punishment to every proved circumstance of extenuation, such as is found, sadly often, in the bad social environment of the criminal, can never accept a plea of irresponsibility. The ancient wisdom of the son of Sirach appears to me to be true wisdom still: “He (the Lord) Himself made man from the beginning, and left him in the hand of his own counsel. If thou wilt, thou shalt keep the commandment; and to perform faithfulness is of thine own good pleasure. Before man is life and death ; and whichsoever he liketh it shall be given him.”
“'Tis in ourselves,” says Shakespeare by the mouth of Iago," that we are thus or thus. Our bodies are our gardens, to the which our wills are gardeners; so that, if we will plant nettles, or sow lettuce; set hyssop and weed up thyme ; supply it with one gender of herbs, or distract it with many ; either to have it sterile with idleness, or manured with industry; why, the power and corrigible authority of this lies in our wills." +
Ecclesiasticus xv. 14, 15, 17.
† Shakespeare, Othello, act i. sc. 3.
What, then, is the central, the dominant idea of the State Punishment of Crime ? Certainly it is not revenge. I cannot accept Dr. Flint's assertion, in the pamphlet already mentioned, that the existing system of criminal law is based upon the ancient idea of vengeance and retaliation. It is true, I suppose, as a matter of ancient history, that the institution of chastisement solemnly and deliberately adjudged and inflicted upon the wrong-doer by the sovereign power of the community, was, in a sense, the outcome as well as the supplanter of the savage and irregular reprisals which had before been wreaked by the injured party himself, or by his family or clan. Perhaps a trace of this source of punishment still lingers in what has been called the ‘litigious' form of our criminal procedure. But, whilst revenge may have been historically the parent of punishment, yet “punishment, by its transfer from the injured party to the judge, has struck a deeper and a purer spring of righteousness in man's nature, and now draws from it alone its true supply."
Is, then, the central and dominant idea of punishment the reformation of the criminal? Is it the prevention of the repetition of his crime by him? Is it the prevention of the commission of crime by others, either directly through the deterrent effect of the example of his punishment breeding in them fear of the like pain if they commit the like crime, or indirectly through the creation in the public mind of an abhorrence of the act which, if proved, subjects the doer to open shame?
The preventive principle has been put forward as the governing principle by great thinkers such as Paley, Bentham, and Brougham. Its assertion from the Bench in old days is well illustrated by the story told by my friend Sir Harry Poland, in an article written by him in the New Review, June, 1893, p. 628. A horse-stealer, on being asked what he had
* Rt. Hon. Sir E. Fry, " Inequality in Punishment.” The Nineteenth Century, 1883, P. 522.
to say why judgment of death should not be passed upon him, said it was hard to hang a man for only stealing a horse. The judge replied, “Man, thou art not to be hanged only for stealing a horse, but that horses may not be stolen.”
The reformatory principle is a younger claimant of supremacy. It has emerged into prominence in quite modern times, through the spread of the philanthropic spirit, and an increased belief both in the potency of education as a purifying and elevating force, and in the duty of the collective whole which we call the State to look to the well-being of the less fortunate amongst the units which compose it.
There can be no question, I think, that both reformation and prevention are principles which, in regard alike to mode and extent of punishment, properly have an important place in the consideration of the statesman who frames penal legis. lation, and of the judge when he is meting out punishment in the particular case. But the root idea, the governing principle, of the punishment of crime is neither the reformation of the criminal nor the prevention of crime. It is the fitness of suffering to sin—the relation which ought to exist between wickedness and pain. “We must try," says Sir Edward Fry, writing on “ Inequality in Punishment," "to get some answer to the question which lies at the bottom of the fact of punishment at all, viz. : Why do we strive to associate pain with sin ? The judge who pronounces sentence on the criminal tries to do this, the parent who punishes his child for a lie strives to do this. In our whole talk about the inequality or the fitness of punishment, we assume some relation between the two things. Why do men complain of the sufferings of the good and the prosperity of the wicked ? Why do they esteem it one of the hardest riddles of the Universe—but that they assume that in a right state of things, pain ought to go with sin, and happiness with righteousness? Why, but for this, should not hell appear the proper home of the righteous, and heaven of the wicked ?
Is not this the foundation of Job's loud wail, and of the echo which it has found through long centuries of men ? Here we seem to be near a fundamental fact of human nature, a moral element apparently incapable of further analysis, the fact that there is a fitness of suffering to sin, that the two things, injustice and pain, which are both contrary to our nature, ought to go together, and that in consequence we naturally desire to bring about an association of the two where it does not already exist. Whence do we derive this principle? Not from the outer world; for, as we have seen, the world responds to it only imperfectly, and by reason of the very imperfection drives us to efforts to realize by punishment that association which otherwise would not exist in fact. Punishment, in short, is an effort of man to find a more exact relation between sin and suffering than the world affords us. But we may go, I think, one step further, and say that to the mind of man this principle is true, not only absolutely, but also secundum majus et minus, and that great suffering is fitting to great sin, and small suffering to small sin. In fact, men have always, so soon as the idea of punishment arises at all, sought for some relation between the punishment and the particular offence; they have not been content to regard merely the effect of the punishment in preventing other like crimes.
"Adsit Regula, peccatis quæ pænas irroget æquas:
Nec scutica dignum, horribili sectere flagello.?" After quoting a confirmatory passage from Rossi's Traite du Droit Pénal,* Sir Edward Fry proceeds thus
“The writers, too, who now so often complain of the inequality of punishment, all proceed on the same footing. All alike, and justly, as I think, decline to throw away all regard for the crime committed ; all refuse to confine their attention to the future effects of the punishment. In a word,
* Vol. iii. p. 99.