Part 8

The existence of such prejudice against the criminal bar is most deplorable. Men of ability and position will shun criminal practice, leaving the field clear to unscrupulous shysters. Let it be remembered that to a man charged with the commission of a crime and deprived of his liberty the lawyer appears a savior; that the accused is practically at his lawyer’s mercy, being under most trying duress and very easily influenced. The temptation for unprofessional dealing is here at its highest, because of the manifest advantage of the lawyer who is able, or whom the client believes to be able, to unlock the prison doors. It takes men of more than ordinary fiber to persistently resist such temptation in all its forms. Hence the necessity of upright and learned men at the criminal bar. But how few are our great criminal practitioners! How often have I heard lawyers, too young and clientless to allow themselves preferences, declare most decidedly that they were willing to do anything “except criminal law”! They had been trained to look upon it not merely as inferior but as degrading practice. Yet it is common knowledge that in European countries, where less boast is made of inalienable rights, it is the ambition of all lawyers to get a reputation at the criminal bar. It is there, in fact, that reputations are made.

It is likewise in those countries where many would make us believe that life, liberty, and property are not as sacredly guarded as in our own country, that the criminal laws are a constant object of scholarly study and investigation. The great progress made in the study of crime, the building up of a criminal science and a criminal sociology, is almost exclusively the work of Continental criminologists. Penology has indeed engaged our attention, but criminology has been almost practically ignored by us.

Of criminal law it was long ago said that, “by reason of the numberless unforeseen events which the compass of a day may bring forth,” the knowledge of its provisions “is a matter of universal concern.” Yet, despite this “universal concern,” our criminal law has been and still is inferior to our civil law. I have pointed out at the beginning of this article how the majesty of the law depended essentially upon its ever-recurring rejuvenescence; that law was a living organism, subject to change and the forces of evolution.

The theories on criminal responsibility and on crime in general, in the light of modern medical, anthropologic, and sociologic sciences, have completely supplanted the old doctrines, yet criminal legislation has apparently taken no notice of them. Modern science tells us that our antiquated tests of criminal responsibility result in sending hundreds of men to prison who ought to be sent to asylums, but we do nothing to avoid this scandal. Under our system the courts are obliged to let the conclusions of the learned judges who occupied the bench three hundred years ago have more weight than the positive investigations of the men of science of our day, and so, consciously or unconsciously, numberless crimes are committed in the name of _stare decisis_. True it is that in some jurisdictions, and notably in New York, the courts have recognized to some extent the progress of science and its influence upon juridic theories. But even in these cases the concession has been made only in _civil_ cases. Thus Mr. Bishop, in his Criminal Law, is obliged to point out that our courts recognize _two kinds of insanity_--to wit, _civil and criminal irresponsibility_. Why the test to be applied in the case of the validity of a will should be different from that applied in the case of murder does not seem very clear. The scientific test as to insanity has been oftentimes recognized and applied by our civil tribunals, but the criminal judges still cling with unabashed attachment to the unscientific and unprogressive rule in McNaughten’s case. The Guiteau trial, which followed that celebrated decision, added fresh authority to the English view, and practically made the rule to be applied in criminal trials a legal dogma.

In an able and exhaustive paper by Mr. J. H. Dougherty on this very subject, before the Society of Medical Jurisprudence, the evils of such dogmatism in criminal law are strikingly set forth. “Life,” he said, “should be as sacred as property. While society needs protection from the criminal, it does not require that the protection should be insured through the application of a fallacious and discredited legal dogma.”

This is but one example of the unprogressiveness of our criminal jurisprudence. Yet, if we really have the ancient principle of the right of life and liberty at heart we ought to recognize that this legal dogma is a greater menace to the practical abrogation of the right than the despotism of an unscrupulous executive. For while the latter is an infringement of a right which the law forbids, the former is a breach of a right which the law sanctions. Again, the theories regarding the object of penal provisions have entirely changed. Punishment has been scientifically shown to be practically useless either as a deterrent or as a correctional remedy. Yet our penal codes are confessedly based on the idea of punishment and retribution. We have indeed made some little headway, such as indeterminate sentences and suspension of judgment, but only in a scattered and tentative way.

The additions to or changes in our criminal codes have been unimportant and unprogressive. What additions are made are slipshod in their make-up, at times partisan in intent, seldom in harmony with the teachings of modern science, and oftentimes in disregard of fundamental principles. Our legislators grant “hearings” before passing a law affecting the business of a few privileged men and give it due weight; but criminal bills, which may affect the public, are generally “rushed through,” probably because of an absolute lack of interest. This is but a repetition of Blackstone’s complaint against criminal legislation in his day. “It is never usual in the House of Commons,” he wrote, “even to read a bill which may affect the property of an individual without first referring it to some of the learned judges and hearing their report thereon. And surely equal precaution is necessary when laws are to be established which may affect the property, liberty, and perhaps the lives of thousands.” And he thus concludes his observations: “The enacting of penalties to which a whole nation should be subject ought not to be left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill.”

The lack of public interest and of intelligent consideration by the people and the bar in criminal problems and criminal legislation are clearly shown by the paucity of criminal statistical data furnished by various States.

Penological research is based on an intelligent study of statistics, and civilized nations, recognizing this fact, have provided elaborate systems of records based on the suggestions of statistical science. But with us statistical facilities in the field of crime are not merely primitive or old-fashioned, but in many cases shamefully absent. In reply to requests addressed to the Secretaries of State of various States for official statistics of crimes committed in their respective jurisdictions, the answers I received were in a number of cases negative. The officials mentioned replied that no statistics were published by the State in Illinois, Georgia, New Jersey, Tennessee, Kentucky, Maryland, Vermont, California, Idaho, Missouri, South Carolina, Connecticut, Texas, Wisconsin, Nebraska, Mississippi, Virginia, Colorado, and Kansas. It is true that in some of these States this lacuna is filled in by special prison reports or reports of commissioners or of the attorneys-general. But even in these cases, as well as in those published officially by the State (Ohio, Indiana, New York, Massachusetts, and Louisiana), the information furnished is a monument of antiquated methods and of very little value to the student of criminology. How, then, can we study the grave questions of crime and criminals without a basis of computation?

It may be true, as some claim, that Continental jurists have refined the criminal law to an unpractical degree and too much on classic and theoretic lines, but it will not be claimed that by adhering to an old-fashioned and obsolete criminal jurisprudence the Anglo-Saxons are safeguarding their fundamental liberties. That there is something essentially wrong, or at least antiquated, with our criminal law is evidenced by the popular discontent against it, which is too widespread and insistent to be the result of ignorance or sentiment. If there is inertia as to changes in the law it is probably because, while feeling that there is something wrong, the people either can not define it or the conservatism of centuries in this field is unconsciously affecting their better intentions. Who will deny (and I address this question to lawyers and judges) that, under our system, guilty men escape and innocent men suffer in larger numbers than it should be, even allowing for the defects inherent in all human systems?--that technicalities and not facts often save scoundrels; that unscrupulous lawyers do not avoid them, and the best of judges are obliged by legal dogmas to respect them? Who will deny (and I address this question to sociologists and penologists) that the penal provisions of our present laws are inappropriate, inelastic, and unscientific; that they neither prevent nor reform; and that the basic principle of our penal codes is still retribution and punishment? Can it be that the right of life, liberty, and property is becoming a pious fraud? Of course, it is not claimed that we have less liberty now than our fathers had three centuries ago; progress never stops, and each day is something gained; but it seems clear that the juridic basis and form of our liberties have not kept up with the progress of those very liberties. Yet, what we call rights must have a counterpart or reflection in our laws. We may, while enjoying those rights, forget that the juridic basis on which they stand is crumbling with age. Unless that basis is rejuvenated the entire edifice must eventually fall. While we are in full possession of our rights we need no laws to guarantee them; but it is when those laws are encroached upon that there arises the necessity of juridic sanction for them.

The right of life, liberty, and property constitutes the essence of the “law of the land.” But the conception of rights, as we have seen, changes and progresses. The law of the land must likewise change and progress.

Laws may be the highest and best creation of man’s intellect, but they are not “hedged in by any divinity.” That is why they are neither infallible nor unchangeable. Yet, as the highest and best creation of man’s intellect, and as the final criterion of human public conduct, they should conform to the best thought and to the highest scientific progress. If they do not approach this standard they are worse than useless, for they become legalized means of oppression. It is then that Justice needs a bandage over her eyes, not to avoid partiality, but to hide her shame.

THE BLIND FISHES OF NORTH AMERICA.

BY CARL H. EIGENMANN,

PROFESSOR OF ZOÖLOGY, INDIANA UNIVERSITY.

“An investigation into the history of degenerate forms often teaches us more of the causes of change in organic Nature than can be learned by the study of the progressive ones.”--WEISMANN.

The caves of the United States are inhabited by three cave salamanders, two of them with degenerate eyes; by six cave fishes, all with impaired vision--five of them with rudimentary eyes, one with eyes the most degenerate among vertebrates; and by several mammals. It is thus seen that among the interesting features of the North American fauna the blind vertebrates are not the least. Yet during the past twenty-five years the only additions to our knowledge, aside from diagnoses of new species, have been a few random notes on the habits and a short account of the eye of Troglichthys by Kohl.

Various classes of vertebrates have blind members, but no large vertebrate has become blind or permanently taken up its home in caves. Blatchley reports that a number of cats have established themselves in Wyandotte Cave, where they bring forth and rear their young. They have exterminated the cave rats, and now station themselves in a narrow passage of the cave and capture bats as they fly through.

Among the permanent residents in dark places we have, among mammals, the moles, which habitually live in burrows of their own make. In Mammoth Cave lives a rat--Neotoma pennsylvanica. In Marengo Cave, Indiana, white-footed mice have established themselves. Although with unimpaired eyes, they have acquired ears and whiskers longer than the rest of their kind living outside.

In Florida occurs a blind lizard--Rhineura floridana. It burrows in the ground, and is colorless and blind.

Of salamanders, one blind species lives in European caves. In the large caves of the eastern United States no blind salamanders have been found, although other species, especially Spelerpes maculicauda, abound. In the caves of Missouri a veiled-eyed salamander, Typhlotriton, has been described within recent years by Stejneger. Still another salamander, Typhlomolge, having rudimentary eyes, has been cast up from an artesian well at San Marcos, Texas, and occurs in the cave streams about that place.

The most abundant of the blind vertebrates, both in individuals and in species, are the blind fishes. These, from their geographical distribution, may be separated into three groups: (1) Those inhabiting the depths of the ocean; (2) those inhabiting dark places along the shores of the ocean; (3) those inhabiting the underground fresh waters.

The fishes, blind or partially blind, living in the depths of the ocean bordering the American continents, are as follows: 1. Ipnops Murrayi Günther lives at depths varying from 955 fathoms to 2,158 and has the very wide distribution suggested by the localities from which specimens have been secured--viz., off the coast of Brazil, near Tristan da Cumba, near Celebes, latitude 24° 36′ north, longitude 84° 51′ west, and off Bequia. This is the only vertebrate in which no vestige of an eye has been found. Ipnops stands alone in a family. 2. The Brotulidæ have several members blind or with very much reduced eyes in various parts of the globe. Aphyonus mollis G. and B., 955 fathoms, and Alexeterion parfaiti Vaillant, 5,005 metres, are the only ones found in the neighborhood of America. 3. The Lophiidæ are represented by Mancalias Schufeldtii Gill, from a depth of 372 fathoms. Other blind species are found in foreign waters, while others with small eyes are found in American waters. The majority of deep-sea fishes have well-developed eyes.

The shore fishes have their blind representative in Typhlogobius californiensis St., which lives under rocks between tide water on the coast of southern and Lower California. I have elsewhere described the habits of this form. In the fresh-water caves of Cuba two blind fishes--Stygicola denta Poey and Lucifuga subterraneus Poey--have been found. Their relatives live in the ocean, Brotula barbata in Cuban waters; some of the others are blind and inhabitants of deep water.

The inland fresh-water fishes are represented by Gronias nigrilabris Cope, a catfish from cave streams of eastern Pennsylvania, and by members of the Amblyopsidæ, concerning which a more detailed account is given below.

THE AMBLYOPSIDÆ.--The Amblyopsidæ are a small family of fishes allied to the Cyprinodontidæ. They are found in the Mississippi drainage basin and in certain southeastern streams. Three of the members of the family, the Chologasters, are provided with well-developed eyes, while four other species are cave fishes in the strictest sense, being blind and colorless. The distribution of the different members of the Amblyopsidæ is as follows:

Chologaster cornutus is found in lowland swamps of the Southern States from the Dismal Swamp to the Okefinokee Swamp. Chologaster Agassizii is found in subterranean streams in Tennessee and Kentucky. Chologaster papilliferus has so far been found only in southwestern Illinois.

Amblyopsis is abundant in the cave streams of the Ohio Valley south of the east fork of White River.

Typhlichthys subterraneus inhabits the region south of the Ohio and east of the Mississippi. A single specimen of another Typhlichthys has been found north of the Ohio River in a well at Corydon, Indiana. Troglichthys rosæ inhabits the caves west of the Mississippi in Arkansas and Missouri.

CHOLOGASTER.--Mr. E. B. Forbes secured a school of Chologaster papilliferus for me, and he wrote: “The little fishes were found under stones at the edges of the spring very close to the bluff, and when disturbed they swam back under the cliff.... None were found at any considerable distance from the face of the cliff.” I found the Chologaster Agassizii to act similarly in the river Styx, in Mammoth Cave. As soon as my net touched the water they darted in under the ledge of rock at the side of the little pool in which I found them.

Chologaster papilliferus detects its food entirely by the sense of touch. Two which were kept in an aquarium for over a year were starved for a few days. They became very nervous, continually swimming along the sides of the aquarium. Asellus was introduced. These, even if quite near, produced no effect if moving in front of the Chologaster. The moment one came in close proximity to the fish from any direction, by a flashlike motion it was seized. None of them were swallowed. The fish became very alert after the introduction of the sowbugs, and when swimming forward would strike at a part of a leaf if it came in contact with the head of the fish. It seemed evident that the eye gave no information of the character of the object. As Asellus was not altogether to their taste, Gammarus was introduced. One of these swimming rapidly toward the chin of the Chologaster from behind and below was instantly seized when it came in contact with the fish. The eye could not have located the Gammarus at all. The action is in very strong contrast to the action of a sunfish, which detects its food by the sight. It is undoubtedly this peculiar method of locating and securing food which has enabled the Amblyopsidæ to establish themselves in caves.

The Chologaster in general make-up is like Amblyopsis, but is somewhat longer-jointed. It sits with its pectorals extended. When it moves horizontally for some distance the pectorals are usually pressed to the sides, the propelling being done largely by the tail very much after the manner of a salamander, which it resembles. In swimming toward the surface it uses its pectoral fins chiefly, and the fish usually sinks to the bottom as soon as its efforts to raise itself are stopped.

Individuals kept in aquaria with one end darkened either collected in the darkened area floating about, or under leaves or sticks in any part of the aquarium. They are frequently found under a floating board, where they float with the tops of their heads in contact with the board, their bodies slanting downward. They seek the dark, regardless of the direction of the rays of light. These characteristics they have, in great part, in common with the blind members of the family. The adult Amblyopsis frequently floats with its head to the top of the water, the tail sloping downward, and in swimming along ledges of rock the top of the head is applied to the ledge. I have captured many specimens simply by scraping my net along the surface of a ledge.

Typhlichthys, living in total darkness, has retained the habit of staying under floating boards, sticks, and stones. Miss Hoppin noticed that Troglichthys swims with its back to the sides of the aquarium, and I have repeatedly noted the same in the young of Amblyopsis up to fifty millimetres, and the still younger Amblyopsis frequently hides under rocks.

AMBLYOPSIS.--The general impression given by Amblyopsis is that of a skinned catfish swimming on its back. The expressions, “They are catfish”; “They look as though they were skinned”; “They are swimming on their backs,” are heard from those who see these fishes for the first time.

The largest individual secured by me measured 135 millimetres in total length. Individuals as large as this are rare. The usual length of an adult is about 90 millimetres. One individual was mentioned to me at Mammoth Cave having a length of 200 millimetres!

Amblyopsis is found in pools in the cave streams it inhabits. I have secured as many as twelve from a pool perhaps ten by fifty feet in size. Very rarely they are to be found in the riffles connecting the pools. I have seen them lying at the bottom, or swimming, or rather gliding, through the water like “white aquatic ghosts.” In the aquarium they lie at the bottom or at various depths in the water, their axes making various angles with the horizontal, their pectorals folded to their sides. When swimming slowly it is chiefly by the use of the pectorals. The strokes of the pectoral are lazily given, and the fish glides on after a stroke till its impetus is exhausted, when another stroke is delivered. The fishes frequently roll slightly from side to side at the exhaustion of the result of a stroke. When swimming rapidly the pectorals are folded to the sides, and their locomotion is then similar to that of a salamander--by the motion of the tail. They readily adjust themselves to different depths, and are usually perfect philosophers, quiet, dignified, unconcerned, and imperturbed, entirely different from such eyed species as minnows and sunfishes which are sometimes found in caves and which are much more readily disturbed by any motion in the water, making it almost impossible to capture them when found in the caves. The pectorals are also almost exclusively used when quietly rising in the water. At such times the pectorals are extended laterally and then pressed to the sides, beginning with the upper rays. A downward stroke is delivered in this way not quickly, but with apparent lazy deliberation. In swimming the pectorals are brought forward upper edge foremost. The center of gravity seems to be so placed in regard to their various axes that the fish does not lose its balance whatever its position. They float horizontally in the water without any apparent effort to maintain their position, or with the main axis inclined upward, with the snout sometimes touching the surface of the water, apparently lifeless. Once one was seen resting on its tail in a nearly vertical position, and one while quietly swimming was once seen to leisurely turn a somersault and swim on undisturbed. At another time the same individual rolled completely over. When one of them is kept out of the water for a short time it frequently goes in a corkscrew-shaped path through the water, continually spinning around its long axis. In their quiet, floating position it is difficult to determine whether they are alive or not.