* Dew vs. Clark.
This in a certain broad sense, probably not intended by the judge who made the statement, is nearly true, but, unfortunately, is not entirely so.
The dense ignorance surrounding mental disease and the barbarous treatment of the insane within a century are facts familiar to everybody. Lunatics were supposed to be afflicted with demons or devils which took possession of them as retribution for their sins, and in addition to the hopelessly or maniacally insane, medical science recognized only a so-called "partial" or delusionary insanity. Today it would be regarded about as comprehensive to relate all mental diseases to the old-fashioned "delusion" as to regard as insane only those who frothed at the mouth.
But the particular individual out of whose case in 1843 arose the rule that is in 1908 applied to all defendants indiscriminately was the victim of a clearly defined insane delusion, and the four questions answered by the judges of England relate only to persons who are "afflicted with insane delusions in respect to one or more particular subjects or persons." Nothing is said about insane persons without delusions, or about persons with general delusions, and the judges limit their answers even further by making them apply "to those persons who labor under such partial delusion only and are not in other respects insane"—a medical impossibility.
Modern authorities agree that a man cannot have insane delusions and not be in other respects insane, for it is mental derangement which is the cause of the delusion.
In the first place, therefore, a fundamental conception of the judges in answering the questions was probably fallacious, and in the second, although the test they offered was distinctly limited to persons "afflicted with insane delusions," it has ever since been applied to all insane persons irrespective of their symptoms.
Finally, whether the judges knew anything about insanity or not, and whether in their answers they weighed their words very carefully or not, the test as they laid it down is by no means clear from a medical or even legal point of view.
Was the accused laboring under such a defect of reason as not to know the nature and quality of the act he was doing, or not to know that it was wrong? What did these judges mean by know?
What does the reader mean by know? What does the ordinary juryman mean by it?
We are left in doubt as to whether the word should be given, as justice Stephens contended it should be, a very broad and liberal interpretation such as "able to judge calmly and reasonably of the moral or legal character of a proposed action,"* or a limited and qualified one. There are all grades and degrees of "knowledge," and it is more than probable that there is a state of mind which I have heard an astute expert call upon the witness stand "an insane knowledge," and equally obvious that there may be "imperfect" nor "incomplete knowledge," where the victim sees "through a glass darkly." Certainly it seems far from fair to interpret the test of responsibility to cover a condition where the accused may have had a hazy or dream-like realization that his act was technically contrary to the law, and even more dangerous to make it exclude one who was simply unable to "judge calmly and reasonably" of his proposed action, a doctrine which could almost be invoked by any one who committed homicide in a state of anger.
*"General View of the Criminal Law," p. 80.
Ordinarily the word is not defined at all and the befuddled juryman is left to his own devices in determining what significance he shall attach not only to this word but to the test as a whole.
An equally ambiguous term is the word "wrong." The judges made no attempt to define it in 1843, and it has been variously interpreted ever since. Now it may mean "contrary to the dictates of conscience" or, as it is usually construed, "contrary to the law of the land"—and exactly what it means may make a great difference to the accused on trial. If the defendant thinks that God has directed him to kill a wicked man, he may know that such an act will not only be contrary to law, but also in opposition to the moral sense of the community as a whole, and yet he may believe that it is his conscientious duty to take life. In the case of Hadfield, who deliberately fired at George III in order to be hung, the defendant believed himself to be the Lord Jesus Christ, and that only by so doing could the world be saved. Applying the legal test and translating the word "wrong" as contrary to the common morality of the community wherein he resided or contrary to law, Hadfield ought to have achieved his object and been given death upon the scaffold instead of being clapped, as he was, into a lunatic asylum.
On the other hand, if the word "wrong" is judicially interpreted, it would seem to be given an elasticity which would invite inevitable confusion as well as abuse.
Moreover, the test in question takes no cognizance of persons who have no power of control. The law of New York and most of the states does not recognize "irresistible impulses," but it should admit the medical fact that there are persons who, through no fault of their own, are born practically without any inhibitory capacity whatever, and that there are others whose control has been so weakened, through accident or disease, as to render them morally irresponsible,—the so-called psychopathic inferiors.
Most of us are only too familiar with the state of a person just falling under the influence of an anesthetic, when all the senses seem supernaturally acute, the reasoning powers are active and unimpaired, and the patient is convinced that he can do as he wills, whereas, in reality, he says and does things which later on seem impossible in their absurdity. Such a condition is equally possible to the victim of mental disease, where the knowledge of right and wrong has no real relevancy.
The test of irresponsibility as defined by law is hopelessly inadequate, judged by present medical knowledge. There is no longer any pretence that a perception of the nature and quality of an act or that it is wrong or right is conclusive of the actual insanity of a particular accused. In a recent murder case a distinguished alienist, testifying for the prosecution, admitted that over seventy per cent. of the patients under his treatment, all of whom he regarded as insane and irresponsible, knew what they were doing and could distinguish right from wrong.
Countless attempts have been made to reconcile this obvious anachronism with justice and modern knowledge, but always without success, and courts have wriggled hard in their efforts to make the test adequate to the particular cases which they have been trying, but only with the result of hopelessly confounding the decisions.
But, however it is construed, the test as laid down in 1843 is insufficient in 1908. Medical science has marched on with giant strides, while the law, so far as this subject is concerned, has never progressed at all. It is no longer possible to determine mental responsibility by any such artificial rule as that given by the judges to the Lords in McNaughten's case, and which juries are supposed to apply in the courts of today. I say "supposed," for juries do not apply it, and the reason is simple enough—you cannot expect a juryman of intelligence to follow a doctrine of law which he instinctively feels to be crude and which he knows is arbitrarily applied.
No juryman believes himself capable of successfully analyzing a prisoner's past mental condition, and he is apt to suspect that, however sincere the experts on either side may appear, their opinions may be even less definite than the terms in which they are expressed. The spectacle of an equal number of intellectual-looking gentlemen, all using good English and all wearing clean linen, reaching diametrically opposite conclusions on precisely the same facts, is calculated to fill the well-intentioned juror with distrust. Painful as it is to record the fact, juries are sometimes almost as sceptical in regard to doctors as they always are in regard to lawyers.
The usual effect of the expert testimony on one side is to neutralize that on the other, for there is no practical way for the jury to distinguish between experts, since the foolish ones generally look as learned as the wise ones. The result is hopeless confusion on the part of the juryman, an inclination to "throw it all out," and a resort to other testimony to help him out of his difficulty. Of course he has no individual way of telling whether the defendant "knew right from wrong," whatever that may mean, and so the ultimate test that he applies is apt to be whether or not the defendant is really "queer," "nutty" or "bughouse," or some other equally intelligible equivalent far "medically insane."
The unfortunate consequence is that there is so general and growing a scepticism about the plea of insanity, entirely apart from its actual merits, that it is difficult in ordinary cases, whatever the jurors may think or say in regard to the matter, to secure twelve men who will give the defence fair consideration at the outset.
This is manifest in frequent expressions from talesmen such as: "I think the defence of insanity is played out," or "I believe everybody is a little insane, anyhow" (very popular and regarded by jurymen as witty), or "Well, I have an idea that when a fellow can't cook up any other defence he claims to be insane."
The result is a rather paradoxical situation: The attitude of the ordinary jury in a homicide case, where the defence of insanity is interposed, is usually at the outset one of distrust, and their impulse is to brush the claim aside. This tendency is strengthened by the legal presumption, which the prosecutor invariably calls to their attention, that the defendant is sane. Every expert who has testified for the defence in the ordinary "knock down and drag out" homicide case must have felt with the prisoner's attorneys, that it was "up to them" not so much to create a doubt of the defendant's sanity as to prove that he was insane, if they expected consideration from the jury.
Now let us assume that the defence is meritorious and that the prisoner's experts have created a favorable impression. Let us go even further and assume that they have generated a reasonable doubt in the mind of the jury as to the defendant's responsibility at the time he committed the offence. What generally occurs? Not, as one would suppose, an acquittal, but, in nine cases out of ten, a conviction in a lower degree.
The only usual result of an honest claim of irresponsibility on the ground of insanity is to lead the jury to reduce the grade of the offence from murder in the first, entailing the death penalty, to murder in the second degree. The jury have no intention of "taking the chance" involved in turning the man loose on the community and their minds are filled with the predominating fact that a human being has been killed. They have an idea that it is as easy to get "sworn out" of a lunatic asylum as they suppose it is to get "sworn into" one, and they know that if the prisoner is found to be insane when sent to State's prison he will be transferred elsewhere. They, therefore, as a rule, waste little time upon the question of how far the defendant was irresponsible within the legal definition when he committed the deed, but convict him "on general principles," trusting the prison officials to remedy any possible injustice. The jury in such cases ignore the law and decline either to acquit or to convict in accordance with the test. Their action becomes rather that of a lay commission condemning the prisoner to hard labor for life on the ground that he is medically insane.
Assuming that the jury take the defence seriously, there is only one class of cases where, in the writer's opinion, they follow the legal test as laid down by the court—that is to say, in cases of extreme brutality. Here they hold the prisoner to the letter of the law, and the more abhorrent the crime (even where its nature might indicate to a physician that the accused was the victim of some sort of mania) the less likely they are to acquit. The writer has prosecuted perhaps a dozen homicide and other cases where the defence was insanity. In his own experience he has known of no acquittal. In several instances the defendants were undoubtedly insane, but, strictly speaking, probably vaguely knew the nature and quality of their acts and that they were wrong. In a few of these the juries convicted of murder in the first degree because the circumstances surrounding the homicides were so brutal that the harshness of the technical doctrine they were required to apply was overshadowed in their minds by their horror of the act itself. In other cases, where either the accused appeared obviously abnormal as he sat at the bar of justice, or the details of the crime were less abhorrent, they convicted of murder in the second degree in accordance with the reasoning set forth in the foregoing paragraph. The writer seriously advances the suggestion that the more the brutality of a homicide indicates mental derangement the less chance the defendant has to secure an acquittal upon the plea of insanity.
And this leads us to that increasingly large body of cases where the usual scepticism of the jury in regard to such defences is counterbalanced by some real or imaginary element of sympathy. In cities like New York, where the jury system is seen at its very best, where the statistics show seventy per cent. of convictions by verdict for the year 1907, and where the sentiment of the community is against the invocation of any law supposedly higher than that of the State, our talesmen are unwilling to condone homicide or to act as self-constituted pardoning bodies, for they know that an obviously lawless verdict will bring down upon them the censure of the public and the press. This is perhaps demonstrated by the fact that in New York County a higher percentage of women are convicted of homicide than of men.
But the plea of insanity, with its vague test of responsibility, whose terms the juryman may construe for himself (or which his fellow-jurors may construe for him) offers an unlimited and fertile field for the "reasonable" doubt and an easy excuse for the conscientious talesman who wants to acquit if he can. Juries take the little stock in irresistible impulses and emotional or temporary insanity save as a cloak to cover an unrighteous acquittal.
In no other class of cases does "luck" play so large a part in the final disposition of the prisoner. A jury is quite as likely to send an insane man to the electric chair as to acquit a defendant who is fully responsible for his crime.
To recapitulate from the writer's experience:
(1) The ordinary juror tends to be sceptical as to the good faith of the defence of insanity.
(2) When once this distrust is removed by honest evidence on the part of the defence, he usually declines to follow the legal test as laid down by the court on the general theory that any one but an idiot or a maniac has some knowledge of what he is doing and whether it is right or wrong.
(3) He applies the strict legal test only in cases of extreme brutality.
(4) In all other cases he follows the medical rather than the legal test, but instead of acquitting the accused on account of his medical irresponsibility, merely convicts in a lower degree.
The following deductions may also fairly be made from observation:
(1) That the present legal test for criminal responsibility is admittedly vague and inadequate, affording great opportunity for divergent expert testimony and a readily availed of excuse for the arbitrary and sentimental actions of juries, to which is largely due the distrust prevailing of the claim of insanity when interposed as a defence to crime.
(2) That expert medical testimony in such cases is largely discounted by the layman.
(3) That in no class of cases are the verdicts of jurors so apt to be influenced solely by emotion and prejudice, or to be guided less by the law as laid down by the court.
(4) That a new definition of criminal responsibility is necessary, based upon present knowledge of mental disease and its causes.
(5) Lastly, that, as whatever definition may be adopted will inevitably be difficult of application by an untutored lay jury, our procedure should be so amended that they may be relieved wherever possible of a task sufficiently difficult for even the most experienced and expert alienists.
A classification of the different forms of insanity, based upon its causes to which the case of any particular accused might be relegated, such as has recently been urged by a distinguished young neurologist, would not, with a few exceptions, assist us in determining his responsibility. It would be easy to say then, as now, that lunatics or maniacs should not be held responsible for their acts, but we should be left where we are at present in regard to all those shadowy cases where the accused had insane, incomplete or imperfect knowledge of what he was doing. It would be ridiculous, for example, to lay down a general rule that no person suffering from hysterical insanity should be punished for his acts. Yet, even so, such a classification would instantly remedy that anachronism in our present law which refuses to recognize as irresponsible those born without power to control their emotions—the psychopathic inferiors of science, and the real victims of dementia praecox.
Of course, if the insanity under which the defendant labors bears no relation to or connection with the deed for which he is on trial, there would logically be no reason why his insanity on other subjects should be any defence to his crime. For example, there is the well-known case of the Harvard professor who was apparently sane on all other matters, yet believed himself to be possessed of glass legs. Had this man in wanton anger struck and killed another, his "glass leg" delusion could not logically have availed him. If, however, he had struck and killed one who he believed was going to shatter his legs it might have been important. The illustration is clear enough, but its application probably involves a mistaken premise. If he thought he had glass legs his mind was undoubtedly deranged—whether enough or not enough to constitute him irresponsible or beyond the effect of penal discipline might be a difficult question. The generally accepted doctrine is, that if a man has a delusion concerning something, which if actually existing as he believed it to be would be no excuse for his committing the criminal act, he is responsible and liable to punishment; but, as Bishop well says:
"This branch of the doctrine should be cautiously received; for delusion of any kind is strongly indicative of a generally diseased mind."
The new test to determine responsibility will recognize, as does the law of Germany, that there can be no criminal act where the free determination of the will is excluded by disease, and that the capacity to distinguish between right and wrong is inconclusive. It may perhaps have to take a general form, leaving it to a lay, or a mixed lay-and-expert jury to say merely whether the accused had a disease of the mind of a type recognized by science, and whether the alleged criminal act was of such a character as would naturally flow from that type of insanity, in which case it would seem obviously just to regard the defendant as partially irresponsible, and perhaps entirely so. Possibly the practical needs of the moment might be met by permitting such a jury to determine whether the defendant had such a knowledge of the wrongful nature and consequences of his act and such a control over his will as to be a proper subject of punishment.* This would require the jury to find that the defendant had some knowledge of right and wrong and the power to choose between them. In any event, to render the accused entirely irresponsible, his act should arise out of and be caused solely by the diseased condition of his mind. The law, while asserting the responsibility of many insane people, should recognize "partial" responsibility as well.
*See State vs. Richards, 1873, Conn.
The reader may feel that little after all would be gained, but he will observe that at any rate such a test, however imperfect, would permit juries to do lawfully that which they now do by violating their oaths. The writer believes that the best concrete test yet formulated and applied by any court is that laid down in Parsons vs. The State of Alabama (81 Ala., 577):
"1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane?
"2. If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible.
"3. If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur:
"(1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed.
"(2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely."
But whatever modification in the present test of criminal responsibility is adopted, there must come an equally, if not even more important, reform in the procedure in insanity cases, which to-day is as cumbersome and out of date as the law itself. As things stand now in New York and most other jurisdictions there are no adequate means open to the State to find out the actual present or past mental condition of the defendant until the trial itself, and ofttimes not even then.
In New York, in cases like Thaw's, the accused, while fully intending to interpose the defence of insanity (which he is now permitted to do simply under the general plea of "not guilty") may not only conceal the fact until the trial, but may likewise successfully block every effort of the authorities to examine him and find out his present mental condition. He may thus keep it out of the power of the District Attorney to secure the facts upon which to move for a commission to determine whether or not he ought to be in an insane asylum or is a fit subject for trial, and at the same time prevent the prosecutor from obtaining any evidence through direct medical observation by which to meet the claim, which may be "sprung" suddenly upon him later at the trial, that the defendant was irresponsible.
In order that this may be clearly understood by the reader he should fully appreciate the distinction between (1) the claim on the part of an accused that he is at present insane, and for that reason should not be either tried or punished for his alleged offence, and (2) the defence that he was (irrespective of his present mental condition) insane within the legal definition of irresponsibility at the time he committed it. No person who is incapable of understanding the nature of the proceedings against him or of consulting with counsel and preparing his defence can be placed on trial at all, or, if already on trial, can continue to be tried, and if a defendant "appears to the court to be insane," the judge may appoint a commission to examine him and report as to his present condition. This may be done upon the application either of the State of the accused through his counsel.
It was such a commission to determine the accused's present mental condition that District Attorney Jerome, upon the basis of the evidence introduced by the defence, applied for and secured during the first trial of Harry K. Thaw. The commission reported that Thaw was sane enough to be tried and the court then proceeded with the original case for the purpose of allowing the jury to say whether he knew the nature and quality of his act and that it was wrong when he shot and killed White.
This was a totally distinct proceeding from the interposition of the DEFENCE that the accused was irresponsible when he committed the crime charged against him and was not inconsistent with it.
Now supposing that the Commission had reported that Thaw was insane at the time of examination and not a fit subject for trial, but, on the contrary, ought to be confined in an insane asylum, the District Attorney would have spent some twenty odd thousand dollars and a year's time of one or more of his assistants in fruitless preparation. Yet, as the law stands on the books to-day in New York, there is no adequate way for the prosecution to find out whether this enormous expenditure of time or money is necessary or not, for it cannot compel the defendant to submit either to a physical or mental examination. To do so has been held to be a violation of his constitutional rights and equivalent to compelling him to give evidence against himself.
Thus when Thaw came to the bar at his first trial the State had never had any opportunity, through an examination by its physicians, to learn what his present condition was or past mental condition had been. The accused, on the other hand, had had over six months to prepare his defence and had fully availed himself of the time to submit to the most exhaustive examinations on the part of his own experts. The defendant's physicians came to court brimming with facts to which they could testify; while the State's experts had only the barren opportunity for determining the defendant's condition afforded by observing him daily in the court room and hearing what Thaw's own doctors claimed that they had discovered. There was no chance to rebut anything which the latter alleged that they had observed, and their testimony, save in so far as it was inconsistent or contradictory in itself, remained irrefutable.
There is probably no procedure which would be held constitutional whereby a compulsory examination of the accused could be had upon the mere application of the prosecuting authorities; but as a commission may generally be appointed at any time after an accused has been indicted if he "appears" to the court to be "insane," and as it is usually within the power of the District Attorney where such is the case to bring sufficient evidence of it to the attention of the court before the prisoner is brought to trial, little time is actually lost and justice is rarely defeated except in those cases (such as Thaw's) where an attempt is to be made to prove the accused insane at the time of the alleged crime although sane at the time of trial. Even here it would be the simplest thing in the world to remedy the difficulty and the proper legal steps in all jurisdictions should be taken immediately.
The two chief objects of such reforms should be, first, to relieve the ordinary jury in as many cases as possible from the necessity of passing upon the delicate issue of a defendant's mental condition at a previous time, and second, where this may not be avoided, to make their task as easy as possible by providing (a) a more scientific and definite test of legal responsibility and (b) an opportunity for adequate examination of defendants availing themselves of this defence.
This last and most practical reform can be easily secured by a slight alteration in the New York Code of Criminal Procedure, which already provides both for the entering of the specific plea of insanity and for the introduction of the defence and the proof of insanity under the general plea of "not guilty." At present the defendant has his choice of openly announcing or of concealing until the trial his intention of claiming that he was insane and so irresponsible for his crime. This is an advantage the results of which were probably not fully contemplated by the Legislature, and one to which an accused has no fair claim.
Fortunately, in the same section of the Code (658), which provides that the court may appoint a Commission to inquire into the sanity of a defendant at the time of his trial, there exists another provision, hitherto little noticed, that:
"When a defendant PLEADS INSANITY, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his insanity at the time of the commission of the crime."
If a defendant intends to prove himself irresponsible for his offence, why should he not be compelled to enter a specific plea to that effect? Once he has entered that plea, the law as it stands just quoted will do the rest. No reason has been brought to the attention of the writer why the admission of any evidence upon the defendant's trial tending to show that he was mentally irresponsible at the time of committing the crime should not be made contingent upon the defence of insanity having been specifically pleaded either at the time of his arraignment or later by substitution for or in conjunction with the plea of "not guilty." This would deprive him of no constitutional right whatever. There is no legal necessity of permitting an accused to prove insanity under a general answer of "not guilty." Then upon his own plea that he had been insane he could instantly be committed to some place of observation where a permanent medical board of inquiry could be given full opportunity to examine him and study his case with a view to determining his present and past mental condition. He would still have in prospect his regular jury trial, but if this board found him at the present time insane, the court could immediately commit him to an asylum pending recovery, precisely as under the present procedure, while if they found him sane at the present time, but reported that, in their opinion (whatever test, "medical" or "legal," they might have applied), he was irresponsible at the time he committed the crime, it is unlikely that any prosecutor would bring him to trial. If, however, they reported that he was not only sane, but had been sane at the time of his crime, it is probable that any proposed defence of insanity would be abandoned, while if it was still urged by the accused, the opinion of such a board would carry far greater weight at the ultimate trial of the case than the individual opinions of experts retained and paid by either side for that particular occasion only, and having had only a comparatively limited opportunity for examination. At any rate, if the court called in the services of such a board of medical judges to assist as amici curie in determining the defendant's condition, while their opinion would not be conclusive upon the jury, it would at least do away with the present lamentable necessity of learned men answering "yes" or "no" to a hypothetical question fifty thousand words long, when the most superficial personal examination of the accused would settle the matter definitely in their minds. Such a procedure is in general use in Germany and other continental countries, and is likewise substantially followed in Massachusetts, Maine, Vermont, and New Hampshire.*
* Another equally efficacious means of dealing with the matter wouldbe to substitute, upon a defendant's plea of insanity, a full jury ofexperts—like any "special" jury—for the ordinary petit jury.
There is good reason to hope that we may soon see in all the states adequate provision for preliminary examination upon the plea of insanity, and a new test of criminal responsibility consistent with humanity and modern medical knowledge. Even then, although murderers who indulge in popular crime will probably be acquitted on the ground of insanity, we shall at least be spared the melancholy spectacle of juries arbitrarily committing feeble-minded persons charged with homicide to imprisonment at hard labor for life, and in a large measure do away with the present unedifying exhibition of two groups of hostile experts, each interpreting an archaic and inadequate test of criminal responsibility in his own particular way, and each conscientiously able to reach a diametrically opposite conclusion upon precisely the same facts.
There are a million and a half of Italians in the United States, of whom nearly six hundred thousand reside in New York City—more than in Rome itself. Naples alone of all the cities of Italy has so large an Italian population; while Boston has one hundred thousand, Philadelphia one hundred thousand, San Francisco seventy thousand, New Orleans seventy thousand, Chicago sixty thousand, Denver twenty-five thousand, Pittsburg twenty-five thousand, Baltimore twenty thousand, and there are extensive colonies, often numbering as many as ten thousand, in several other cities.
So vast a foreign-born population is bound to contain elements of both strength and weakness. The north Italians are molto simpatici to the American character, and many of their national traits are singularly like our own, for they are honest, thrifty, industrious, law-abiding and good-natured. The Italians from the extreme south of the peninsula have fewer of these qualities, and are apt to be ignorant, lazy, destitute, and superstitious. A considerable percentage, especially of those from the cities, are criminal. Even for a long time after landing in America, the Calabrians and Sicilians often exhibit a lack of enlightenment more characteristic of the Middle Ages than of the twentieth century.
At home they have lived in a tumble-down stone hut about fifteen feet square, half open to the sky (its only saving quality); in one corner the entire family sleeping in a promiscuous pile on a bed of leaves; in another a domestic zoo consisting of half a dozen hens, a cock, a goat, and a donkey. They neither read, think, nor exchange ideas. The sight of a uniform means to them either a tax-gatherer, a compulsory enlistment in the army, or an arrest, and at its appearance the man will run and the wife and children turn into stone. They are stubborn and distrustful. They are the same as they were a thousand or more years gone by.
When the writer was acting as an assistant prosecutor in New York County, a young Italian, barely twenty years of age, was brought to the bar charged with assault with intent to kill. The complainant was a withered Sicilian woman who claimed to be his wife. Both spoke an almost unintelligible dialect. The case on its face was simple enough. An officer testified that on a Sunday morning in Mulberry Bend Park, at a distance of about fifty feet from where he was standing, he saw the defendant, who had been walking peaceably with the complaining witness, suddenly draw a long and deadly looking knife and proceed to slash her about the head and arms. It had taken the officer but a moment or two to seize the defendant from behind and disarm him, but in the meantime he had inflicted some eleven wounds upon her body. No explanation had been offered for this terrible assault, and the complainant had appeared involuntarily before the Grand jury and afterward had to be kept in the House of Detention as a hostile witness. The woman, who appeared to be about fifty years old, was sworn, and on being questioned stated that she had been married to the defendant in Sicily three years before. She declined to admit that he had attacked or harmed her in any way, constantly mumbling: "He is my husband. Do not punish him!"
The defendant, however, seemed eager to get on the stand and to tell his story; nor did the introduction of the knife in evidence or the exhibition of the woman's wounds embarrass him in the slightest degree. His manner was that of a man who had only to explain to be entirely exonerated from blame. He nodded at the jury and the judge, and scowled at the complainant, who was speedily conducted to a place where no harm could possibly come to her. When at last he was sworn, he could hardly restrain himself into coherency.
"Yes—that woman forced me to marry her!" he testified in substance. "But in the eyes of God I am not her husband, for she bewitched me! Else would I have married an old crone who could not have borne me children? When her spells weakened I left her and came to America. Here I met the woman I love,—Rosina,—and as I had been bewitched into the other marriage, we lived together as man and wife for two years. Then one day a friend told me that the old woman had followed me over the sea and was going to throw her spells upon me again. But I did not inform Rosina of these things. The next evening she told me that an old woman had been to the house and asked for me. For days my first wife lurked in the neighborhood, beseeching me to come back to her. But I told her that in the eyes of God she was not my wife. Then, in revenge, she cast the evil eye upon the child—sul bambino—and for six weeks it ailed and then died. Again the witch asked me to go with her, and again I refused. This time she cast her evil eye upon my wife—and Rosina grew pale and sick and took to her bed. There was only one thing to do, you understand. I resolved to slay her, just as you—giudici—would have done. I bought a carving-knife and sharpened it, and asked her to walk with me to the park, and I would have killed her had not the police prevented me. Wherefore, O giudici! I pray you to recall her and permit me to kill her or to decree that she be hung!"
This case illustrates the depths of ignorance and superstition that are occasionally to be found among Italian peasant immigrants. Another actual experience may demonstrate the mediaeval treachery of which the Sicilian Mafiuso is capable, and how little his manners or ideals have progressed in the last five hundred years or so.
A photographer and his wife, both from Palermo, came to New York and rented a comfortable home with which was connected a "studio." In the course of time a young man—a Mafiuso from Palermo—was engaged as an assistant, and promptly fell in love with the photographer's wife. She was tired of her husband, and together they plotted the latter's murder. After various plans had been considered and rejected, they determined on poison, and the assistant procured enough cyanide of mercury to kill a hundred photographers, and turned it over to his mistress to administer to the victim in his "Marsala." But at the last moment her hand lost its courage and she weakly sewed the poison up for future use inside the ticking of the feather bolster on the marital bed.
This was not at all to the liking of her lover, who thereupon took matters into his own hands, by hiring another Mafiuso to remove the photographer with a knife-thrust through the heart. In order that the assassin might have a favorable opportunity to effect his object, the assistant, who posed as a devoted friend of his employer, invited the couple to a Christmas festival at his own apartment. Here they all spent an animated and friendly evening together, drinking toasts and singing Christmas carols, and toward midnight the party broke up with mutual protestations of regard. If the writer remembers accurately, the evidence was that the two men embraced and kissed each other. After a series of farewells the photographer started home. It was a clear moonlight night with the streets covered with a glistening fall of snow. The wife, singing a song, walked arm in arm with her husband until they came to a corner where a jutting wall cast a deep shadow across the sidewalk. At this point she stepped a little ahead of him, and at the same moment the hired assassin slipped up behind the victim and drove his knife into his back. The wife shrieked. The husband staggered and fell, and the "bravo" fled.
The police arrived, and so did an ambulance, which removed the hysterical wife and the transfixed victim to a hospital. Luckily the ambulance surgeon did not remove the knife, and his failure to do so saved the life of the photographer, who in consequence practically lost no blood and whose cortex was skilfully hooked up by a dextrous surgeon. In a month he was out. In another the police had caught the would-be murderer and he was soon convicted and sentenced to State prison, under a contract with the assistant to be paid two hundred and fifty dollars for each year he had to serve. Evidently the lover and his mistress concluded that the photographer bore a charmed life, for they made no further homicidal attempts.
So much for the story as an illustration of the mediaeval character of some of our Sicilian immigrants. For the satisfaction of the reader's taste for the romantic and picturesque it should be added, however, that the matter did not end here. The convict, having served several years, found that the photographer's assistant was not keeping his part of the contract, as a result of which the assassin's wife and children were suffering for lack of food and clothing. He made repeated but fruitless attempts to compel the party of the first part to pay up, and finally, in despair, wrote to the District Attorney of New York County that he could, if he would, a tale unfold that would harrow up almost anybody's soul. Mr. Jerome therefore, on the gamble of getting something worth while, sent Detective Russo to Auburn to interview the prisoner. That is how the whole story came to be known. The case was put in the writer's hands, and an indictment for the very unusual crime of attempted murder (there are only one or two such cases on record in New York State) was speedily found against the photographer's assistant. At the trial the lover saw his mistress compelled to turn State's evidence against him to save herself. She testified to the Christmas carols and the cyanide of mercury.
"Did you ever remove this terrible poison from the bolster?" demanded the defendant's counsel in a sneering tone.
"No," answered the woman.
"Have you ever changed the bolster?" he persisted.
"No."
"Then it's there yet?"
"I-I think so," falteringly.
"I demand that this incredible yarn be investigated!" cried the lawyer. "I ask that the court send for the bolster and cut it open here in the presence of the jury."
The writer had no choice but to accede to this request, and the bolster was hunted down and brought into court. With some anxiety both sides watched while the lining was slit with a penknife. A few feathers fluttered to the floor as the fingers of the witness felt inside and came in contact with the poison. The assistant was convicted of attempted murder on the convict's testimony, and sentenced to Sing Sing for twenty-five years. That was the end of the second lesson.
About a month afterward the defendant's counsel made a motion for a new trial on the ground that the convict now admitted his testimony to have been wholly false, and produced an affidavit from the assassin to that effect. Naturally so startling an allegation demanded investigation. Yes, insisted the "bravo," it was all made up, a "camorra"—not a word of truth in it, and he had invented the whole thing in order to get a vacation from State prison and a free ride to New York. However, the court denied the motion. The writer procured a new indictment against the assassin—this time for perjury—and he was sentenced to another additional term in prison. What induced this sudden and extraordinary change of mind on his part can only be surmised.
These two cases are extreme examples of the mediaevalism that to a considerable degree prevails in New York City, probably in Chicago and Boston, and wherever there is an excessive south Italian population.
The conditions under which a large number of Italians live in this country are favorable not only to the continuance of ignorance, but to the development of disease and crime. Naples is bad enough, no doubt. The people there are poverty-stricken and homeless. But in New York City they are worse than homeless. It is better far to sleep under the stars than in a stuffy room with ten or twelve other persons. Let the reader climb the stairs of some of the tenements in Elizabeth Street, or go through those in Union Street, Brooklyn, and he will get firsthand evidence. This is generally true of the lower class of Italians throughout the United States, whether in the city or country. They live under worse conditions than at home. You may go through the railroad camps and see twenty men sleeping together in a one-room built of lath, tar-paper, and clay. The writer knows of one Italian laborer in Massachusetts who slept in a floorless mud hovel about six feet square, with one hole to go in and out by and another in the roof for ventilation—in order to save $1.75 per month. All honor to him! Garibaldi was of just such stuff, only he suffered in a better cause. In Naples the young folks are out all day in the sun. Here they are indoors all the year round. For the consequences of this change see Dr. Peccorini's article in the 'Forum' for January, 1911, on the tuberculosis that soon develops among Italians who abroad were accustomed to live in the country but here are forced to exist in tenements.
Now, for historic reasons, these south Italians hate and distrust all governmental control and despise any appeal to the ordinary tribunals of justice to assert a right or to remedy a wrong. It has been justly said by a celebrated Italian writer that, in effect, there is some instinct for civil war in the heart of every Italian. The insufferable tyranny of the Bourbon dynasty made every outlaw dear to the hearts of the oppressed people of the Kingdom of the Two Sicilies. Even if he robbed them, they felt that he was the lesser of two evils, and sheltered him from the authorities. Out of this feeling grew the "Omerta," which paralyzes the arm of justice both in Naples and Sicily. The late Marion Crawford thus summed up the Sicilian code of honor:
According to this code, a man who appeals to the law against his fellow man is not only a fool but a coward, and he who cannot take care of himself without the protection of the police is both.... It is reckoned as cowardly to betray an offender to justice, even though the offence be against one's self, as it would be not to avenge an injury by violence. It is regarded as dastardly and contemptible in a wounded man to betray the name of his assailant, because if he recovers he must naturally expect to take vengeance himself. A rhymed Sicilian proverb sums up this principle, the supposed speaker being one who has been stabbed. "If I live, I will kill thee," it says; "if I die, I forgive thee!"
Any one who has had anything to do with the administration of criminal justice in a city with a large Italian population must have found himself constantly hampered by precisely this same "Omerta." The south Italian feels obliged to conceal the name of the assassin and very likely his person, though he himself be but an accidental witness of the crime; and, while the writer knows of no instance in New York City where an innocent man has gone to prison himself rather than betray a criminal, Signor Cutera, formerly chief of police in Palermo, states that there have been many cases in Sicily where men have suffered long terms of penal servitude and even have died in prison rather than give information to the police.
In point of fact, however, the "Omerta" is not confined to Italians. It is a common attribute of all who are opposed to authority of any kind, including small boys and criminals, and with the latter arises no more from a half chivalrous loyalty to their fellows than it does from hatred of the police and a uniform desire to block their efforts (even if a personal adversary should go unpunished in consequence), fear that complaint made or assistance given to the authorities will result in vengeance being taken upon the complainant by some comrade or relative of the accused, distrust of the ability of the police to do anything anyway, disgust at the delay involved, and lastly, if not chiefly, the realization that as a witness in a court of justice the informer as a professional criminal would have little or no standing or credence, and in addition would, under cross-examination, be compelled to lay bare the secrets of his unsavory past, perhaps resulting indirectly in a term in prison for himself.* Thus may be accounted for much of the supposed "romantic, if misguided, chivalry" of the south Italian. It is common both to him and to the Bowery tough. The writer knew personally a professional crook who was twice almost shot to pieces in Chatham Square, New York City, and who persistently declined, even on his dying bed, to give a hint of the identity of his assassins, announcing that if he got well he "would attend to that little matter himself." Much of the romance surrounding crime and criminals, on examination, "fades into the light of common day"—the obvious product not of idealism, but of well-calculated self-interest.