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“heredity plays a most important part in the transmission of crime, idiocy and imbecility.” I defy anyone to prove that the fact that a man has committed rape, is any indication that there will be transmitted to his offspring any undesirable hereditary trait.
Of course, I have selected, in order to illustrate the weakness of the law, perhaps the extreme possibility under it. It is possible, logically at least, and if the judges of the facts and probabilities are not restrained by their own good nature or better judgment, that a man who has been convicted of rape upon false testimony, and who shews not the slightest mental defect, shall be emasculated at the will of indifferent or malicious custodians.
The Indiana Legislature has declared that crime, idiocy and imbecility are transmissible. This is the assertion of a fact of nature; the legislative declaration does not make it true; and it is by no means established as a universal truth, and perhaps not at all. But the Legislature has, by implication gone further, and asserted that if a confirmed criminal, idiot, rapist, or imbecile shews signs of probable improvement his defect is not so far transmissible as to make procreation undesirable. In short, the Legislature has accepted as established fact, the finest shading in the laws of heredity, which are not yet established as a fact in their very broadest outlines.
IIeredity. Being a mere lawyer, it certainly does not behoove me to be dogmatic upon the subject of heredity, upon which I confess my knowledge is that of a tyro. But the fact which strikes me forcibly is that the suggestions which lead to the sterilization of criminals and imbeciles come from sociologists and amateur reformers, and not from biologists or students of heredity. It might be demonstrated by many illustrations that a popular belief respecting a common fact of heredity may be an actual mistake. Ilet me take but one example: one of the most firmly fixed of the ideas of heredity is what is known among students of the subject as Telegony, or the transmission to offspring by a later sire of the physical characteristics of a former sire with which the dam had previously bred. I have read some particularly cogent illustrations of this contention, which, taken by themselves, seemed to the lay mind convincing. And yet in the Article on Heredity in the latest edition of the Encyclopedia Britannica, the author says:–
“Although breeders of stock have a strong belief in the existence of this, there are no certain facts to support it, the supposed cases being inore readily explained as individual variations of the kind generally referred to as “atavism.’”
But this merely serves as an illustration of the possibility of a too confident belief in notions of the heritability of physical qualities even among those whose business it is to breed animals for profit. It does not settle or tend to settle the question whether mental defects or criminal tendencies in human beings are transmissible. I know of no reason to believe that mental characteristics are more transmissible than physical ones. Indeed, the scientific students of the subject of heredity do not yet seem to have made bold to dogmatise about the inheritance of mental characteristics in man; and the subject itself appears, so far as I can learn, among those who follow it systematically, to be still in the observational, rather than in the later stage, in which ultimate conclusions are formulated. Physical characteristics are still the subject of hazardous conjectures, such as, for instance, that because a man has 1024 tenth grandparents, this heavy weight of ancestral mediocrity produces regression or progression to type; so that while in a large numher of cases of fathers 72 inches in height, the mean stature of sons was 70.8 inches—a regression toward the normal stature of the race—in another large number of cases of fathers 66 inches in height, the mean height of the sons was 68.3 inches—a progression toward the normal. Of course, even here the maternal height is not taken into consideration, but it may be assumed either that there was a normal average of height among the mothers, or perhaps that the impulse toward normality drove the tall fathers to select short wives, and, vice versa, the short fathers to choose tall mothers for their sons, But be that as it may, how can we with any shew of reason. unless we rely upon actual data from experience, collated and properly considered by those specially equipped by education for the purpose, know that “rapists” are more apt to beget criminal sons, independent of environment, than that 72-inch fathers will get 72-inch sons; why not rather assume that the tendencies in mental as in physical inheritance is progression toward normal type represented in the average of the 1024 grandparents in the tenth previous generation with all of the additional grandparents in the intermediate generations. It is true that after comparison of physical characteristics, a socalled “ancestral law " of heredity has been ventured, to the effect that each parent on the average contributes A, each grandparent 1-16, and each ancestor of the nth place (0.5)?n. But this means that on the average no parent influences his offspring more than one-fourth in any physical peculiarity; and the remaining three-fourths, on the average, are determined (subject always to environment, or post-matal influences) by his other parent, and his more remote ancestors on both sides. Even upon this hypothesis, the writer upon heredity already quoted, says, “But this like all other deductions, is applicable only to the mass of cases and not to any individual case.” t I pause to ask what reason or data have we to suppose that mental traits differ in their relative transmissibility from physical traits? And of physical traits the same writer says:
* See also article, Telegony, in same publication. “ IIeredity,” Enc. Brit. 11th Ed
“It follows that the study of variation must be associated with, or rather must precede, the empirical study of heredity. and we are beginning to know enough now to be certain that in both cases the results to be obtained are practically useless for the individual case, and of value only when large masses of statistics are collected. No doubt when general conclusions have been established, they must be acted on for individual cases, but the results can not be predicted for the individual case, but only for the average of a mass of individual cases.” (The italics are mine).
But these sterilization laws deal with individual cases; and they authorize probably ignorant boards of managers, probably ignorant, not to say malicious, wardens and superintendents, and possibly, if not probably, ignorant institutional physicians to select individual victims for the sacrifice.
Of course, I have some intimation of the dominant and regressive characteristics assumed by Mendel's law, and of the assumption of prepotency in certain ancestors, such as negroes, Chinese and Jews, but I am not aware that it is yet established that criminals or rapists are either dominant or prepotent, whatever may be said of imbeciles or idiots.
I select the sterilization law of Indiana for discussion at this point because it is both the crudest and, as I understand, the earliest of the laws, relating to sterilization in this coun
I have purposely brought it into juxtaposition with the legislative condemnation of Richard Rouse, because to my mind, they both illustrate a thoroughly bad tendency in legislation; the assumption by the Legislature to declare facts of which it is not fully advised, and the attempt to prescribe a penalty unnecessarily harsh, and which in the particular case may be unjust and not calculated to produce the desired result or any substantial benefit to the community. Unless sterilization has a well ascertained beneficial result upon the community itself, it is a punishment simply; and has no justification except as a penalty. Whether it has any beneficial effect upon the community is most assuredly debatable as a fact.
While I would not assume to declare the laws of heredity with that degree of confidence which marks the enactment of the Indiana Legislature, I am aware that the transmissibility of acquired characteristics has been one of the most hotly debated questions among biologists, even when they concern only the external physical appearance, such as the feathers of a bird. I am not aware that biologists have ventured to dogmatize with any certitude upon the transmissibility of mental characteristics in human beings. I am aware that alienists have so far thought that they recognized family peculiarities in mental traits, that they have induced Courts, within limits of close relationship, where the mental condition of a person is in question, to permit evidence of similar mental condition in others of the same family, and that certain students of social conditions have compiled the statistics of certain fami. lies, whose environment was unfavourable to high mental de velopment in the individual, and have apparently found an abnormally large number of mental or social defectives in such families, when compared with other families more favourably situated. I am aware also that it is these students of social conditions, rather than alienists or biologists, who have sought to inculcate the conclusion which they have drawn that mental defects and tendencies to crime are transmissible. But I am not aware that anyone, except the Indiana Legislature and its advisers, has yet been so bold as to advance the theory that from the standpoint of heredity a man who shews an individual tendency to improve is a desirable father, while one who exhibits a tendency to remain stationary is an undesirable father, and particularly where the extent of his present deterioration is not defined. It may be that I have misapprehended the meaning of the term rapist, as used in this law; and that it does not mean a person who has been convicted of a single rape; but that it means rather a person who has exhibited a confirmed mental idiosyncrasy in that direction. If the preamble of the law is to be taken as the excuse for its enactment, then it means that whereas confirmed criminals (whatever that may mean), rapists (whether confirmed or not, as the case may be), idiots, and imbeciles, have been demonstrated to transmit their defective characteristics to their offspring, unless they themselves shew signs of improvement, therefore those of these who shew no signs of improvement ought to be the subjects of sterilization. The objections to the laws.-I contend that there is no sufficient justification in established and accepted fact for this; that the facts are yet debatable; that if the facts were established beyond dispute, the remedy would be of doubtful utility; and that as a dangerous precedent, it should be most carefully scrutinized, if not utterly condemned ; and that finally, from the standpoint of sound practical philosophy, it belongs to a class of legislation which has been left behind in the cast off junk of ignorant efforts, with which the past is filled. While I have, for reasons already explained, taken the In
diana statute as the type for discussion, I shall speak later of the statutes of a similar nature in other States.
The legislation is premature and its theory possibly unsound.—The Indiana Legislature in taking it for granted that criminal tendencies are transmissible, and perhaps even in the case of idiots and imbeciles, has failed to consider the effect of environment in producing undesirable traits in offspring. There are those who earnestly contend that every such undesirable trait is the result of surroundings and example, and not of heredity. It seems certain, to me at least, that the subject has not yet been so fully studied, or the facts so far ascertained, as to establish that criminal traits are transmissible, even if we are agreed upon what constitute criminal traits. Many of our crimes are statutory only, and they do not necessarily indicate depraved tendencies even in the perpetrator, not to speak of their transmissible character. And many of the traits, which in an orderly community are crimes, are those which among leaders of men in political communities have in the past constituted them popular heroes. So there is really no fixity about what constitutes a criminal trait. Napoleon Bonaparte, for instance, had enough traits of a reprehensible kind, to fill