In the same way, from the standpoint of _Criminal Sociology

divide the social strata into three analogous categories--the

highest, which commits no crimes, organically upright, restrained

only by the authority of the moral sense, of religious sentiments

and public opinion, together with the hereditary transmission of

moral habits. This class, for which no penal code would be

necessary, is unfortunately very small; and it is far smaller if,

in addition to legal and apparent criminality, we also take

into account that social and latent criminality through which many

men, who are upright so far as the penal code is concerned, are

not upright by the standard of morality.

Another class, the lowest, is made up of individuals opposed to

all sense of uprightness, who, being without education,

perpetually dragged back by their material and moral destitution

into the primitive forms of the brute struggle for existence,

inherit from their parents and transmit to their children an

abnormal organisation, adding degeneration and disease, an

atavistic return to savage humanity. This is the nursery of the

born criminals, for whom punishments, so far as they are legal

deterrents, are useless, because they encounter no moral sense

which could distinguish punishment by law from the risk which also

attends upon every honest industry.

Lastly we have the other class of individuals who are not born to

crime, but are not firmly upright, alternating between vice and

virtue, with imperfect moral sense, education and training, for

whom punishment may be genuinely useful as a psychological motive.

It is just this class which yields the large contingent of

occasional criminals, for whom punishments are efficacious if they

are directed in their execution by the axioms of scientific

psychology, and especially if they are aided by the social

prevention which reduces the number of opportunities of committing

crimes and offences.

Once again I must express my agreement with M. Garofalo, who, in

dealing with this subject, insists on the necessity of

distinguishing between the different classes of criminals before

deciding as to the efficacy of punishments.

Yet this conclusion as to the very limited efficiency of

punishments, which is forced upon us by facts, and which, as

Bentham said, is confirmed by the application of each punitive

act, precisely because its previous application did not succeed in

preventing crime, is directly opposed to general public opinion,

and even to the opinion of jurists and legislators.

On the inception or the growth of a criminal manifestation,

legislators, jurists, and public think only of the remedies, which

are as easy as they are illusory, of the penal code, or of some

new Act of repression. Even if this were useful, which is very

problematical, it has the inevitable disadvantage of making men

ignore other remedies, far more profitable, albeit more difficult,

of a preventive and social kind. And this tendency is so common

that many of those who have dwelt upon or accepted the positive

movement of the new school, not long after they had admitted that

I was in the right, declared impulsively that ``the constant

commission of crime arises from the lack of timely repression,''

and that ``one of the chief causes of the growth of crime in Italy

is the mildness of our punishments.'' Or else they forgot to ask

themselves the elementary question of criminal sociology, whether

and how far punishments have a genuinely defensive force. This is

just what happens with pedagogues who enter upon long discussions

on the various methods and means of education, without

asking themselves beforehand whether and how far education has the

actual power of modifying the temperament and character which

heredity stamps upon every individual.

These conclusions take us far beyond the limit of penal severity,

and at the same time they suffice to combat the objection commonly

raised against those who think, like ourselves, that repressive

justice ought to concern itself not with the punishment of past

crime, but with the prevention of future crime. For whilst the

advocates of severity, and those whom I will call the

``laxativists,'' virtually think (apart from a few platonic

statements) only of punishments as remedies of offences, we on the

other hand believe that punishments are merely secondary

instruments of social self-defence, and remedies ought to be

adapted to the actual factors of the offence. And since the

social factors are most capable of modification, so we say with

Prins that ``for social evils we require social cures.''

M. Tarde, then, was not quite accurate in his remark that my

conviction as to the very slight efficacy of punishments is a mere

consequence of my ideas on the anthropological and physical

character of crime, and that, ``on the contrary, the

preponderating importance which he has assigned to the social

causes logically debars him from accepting this conclusion.'' As

a matter of fact, punishment regarded as a psychological motive so

far as it is a legal deterrent, and as a physical motive so far as

it implies the confinement of the person condemned, would more

naturally belong, in abstract logic, to the biological and

physical theory of crime. Whereas it is precisely because I

recognise the influence of social environment, in addition, that

experimental logic convinces me that punishment is not an

efficacious remedy of crime, unless forces are applied beforehand

to neutralise, or at any rate to counteract, the social factors of

crime.

And if this is not a new conclusion, as one of our critics

observes by way of reproach--as though it were not one of the

characteristics of truth to repeat itself persistently, however

much it may be forgotten or even opposed--we must nevertheless

remark that it is now repeated with a mass of new observations and

definite applications, which give it a force unknown to mere

logical deductions.

The classical school has concerned itself simply with mitigation

of punishment as compared with medi<ae>val excess; and for this

reason, because every age has its own mission, it could not also

concern itself with the prevention of crimes, which is far more

useful and efficacious. A few isolated thinkers, it is true,

wrote a few bold and far-reaching pages on preventive methods in

opposition to the numerous volumes on punishment; but their words

had no effect upon criminalists and legislators, because science

had not yet undertaken the positive and methodical observation of

the natural factors of crime.

I will confine myself to a few examples, in order to show that

amongst practical men, as amongst public officials and

legislators, the illusion that punishments are the true panacea of

crime is always predominant.

Practical men declare that ``the prohibitive penal law ought to be

regarded as the first and most important of preventive laws.''

The pr<e'>fets in their circulars, being concerned about the

increase of crime, put forward the most vigilant and severe

repression as a sovereign remedy. A counsellor of the French Cour

de Cassation writes that ``in a worthy system of social police

there is no better guarantee for order and safety than

intimidation.'' The Keeper of the Seals, in his report on French

penal statistics for 1876, speaking of the continued increase of

indecent assaults, comes to the conclusion that ``in any case,

only firm and energetic repression can avail against a lamentable

increase of crimes against morality.'' And more recently another

Keeper of the Seals ended his report on the statistics of 1826 to

1880 by observing that ``the growth of crime can only be opposed

by an incessantly vigorous repression.'' M. Tarde agreed with

this conclusion, saying that ``if crimes are only, as has been

said, railway accidents of a society travelling at full speed, it

must not be forgotten that, the faster the train, the stronger

must be the brake . . . and it is certain that such a state of

affairs demands an increase or a new departure of repression and

punishment.''

It may be admitted that our conclusion is not a novelty; but, as

Stuart Mill said, there are two ways of effecting useful

innovations, to discover what was not known before, or else to

repeat with new demonstrations the truths which had been

forgotten.

And this illusion as to the influence of punishments is so

widespread that it is well to inquire into its historic and

psychological arguments; for, as Spencer says, in order to decide

as to the value of an idea, it is useful to examine its genealogy.

We may pass by the foundation of primitive vengeance, which from

the age of private combats passed into the spirit and form of the

earliest penal laws, and still subsists as a more or less

unconscious and enfeebled residuum in modern society. We may also

pass by the hereditary effect of the traditions of medi<ae>val

severity, which excite an instinctive sympathy for stern

punishment in connection with every crime.

But one of the main reasons of this tendency is an error of

psychological perspective, whereby men have forgotten the profound

differences of the ideas, habits, and sentiments of the various

social strata, concerning which I have spoken above. Through this

forgetfulness the honest and instructed classes confound their own

idea of the penal law, and the impression it makes upon them, with

the idea and the impression of the social classes from which the

majority of criminals are recruited. This has been remarked upon

by Beccaria, Carmignani, and Holtzendorff amongst the classical

criminalists, and by Lombroso and others of the new school who

have studied the slang and literature of criminals, which are

their psychological mirror. Again, it is forgotten that for the

higher classes, apart from their physical and moral repugnance

against crime, which is the most powerful repelling force, there

is the fear of public opinion, almost unknown amongst the classes

which have stopped short at a lower stage of human

evolution.

For the higher classes one example may suffice. It is the fact

observed upon by Mr. Spencer, that gambling debts and Stock

Exchange bargains are scrupulously discharged, though for them

there is neither penal obligation nor evidence in writing. And it

may be added that imprisonment for debt never promoted the

fulfilment of contracts, nor has its abolition discouraged it.

As for the lower classes, one visit to a prison suffices. There,

if you ask a prisoner why the punishment did not deter him from

the crime, you generally get no answer, because he has never

thought about it. Or else he replies, as I have often found, that

``if you were afraid of hurting yourself when you went to work,

you would give up working.'' These indeed are what one would

expect to be the feelings prevailing amongst the lower social

strata, to whom honest sentiments and ideas, which for us are

traditional and organic, come very late--just as Mr. Stanley

observed that the people in Central Africa are only now beginning

to employ stone guns, which in past ages were used in Europe.

Another fallacy which helps to strengthen confidence in

punishments is that the effect of exceptional and summary laws is

treated on the same basis as that of the ordinary codes, slow and

uncertain in their procedure, which saps all their force by the

chance of immunity, and the interval between the unlawful act and

its legal consequence.

Lombroso and Tarde, indeed, have confronted me with

historic examples of vigorous and even savage repressions, whereby

it was possible to stamp out some epidemic crime. But these

examples are not conclusive, for I have shown that, as soon as

these exceptional repressions were at an end, as, for instance,

after the death of Pope Sixtus V., brigandage and other crimes

were persistently renewed. But my main rejoinder is this, that

these exceptional repressions depend upon the _jus belli_; and

therefore cannot enter into the ordinary and constant methods of

penal administration. This may not have the effect of an

extraordinary repression, secured by a somewhat unscrupulous

promptitude, which strikes innocent and guilty alike; and thus it

is impossible to treat as equal, or even to compare, the influence

of methods which are essentially different.

Another false comparison is drawn between the effective force of

various punishments, and their potentiality is confounded, whereas

it is necessary to distinguish the punishment of the written code

from that of the judge, and still more from that carried into

execution. In fact it is only natural that punishment should more

or less terrify the criminal who has been judged and is about to

be condemned; but this in no way proves its efficacy, which should

have been displayed by the menace of the law in guarding the

prisoner against the crime. Even with the death penalty, there

are many instances of condemned persons who, through congenital

insensibility, submit to it cynically. Moreover, for such as have

been overwhelmed with terror when the moment of execution arrived,

the utmost that this fact can prove is that they are so

constituted as to give themselves up completely to the impression

of the moment, without the energy to resist it. In other words,

so long as the punishment is distant and uncertain, they were not

terrified, but having always yielded to the impression of the

moment, they yielded to the criminal impulse.

For other punishments, also, it is known that punitive methods,

even when not contrary to the law, as they sometimes are in Italy,

are always less stern than simple folk imagine when they read the

codes and the sentences. And criminals naturally judge of

punishments by their own experience, that is to say, in accordance

with their practical application, and not with the more or less

candid threats of the lawmaker.

If we add to vindictive feeling, historic traditions, oblivion of

bio-psychic differences of the social strata, the confounding of

exceptional laws and ordinary punishments, and of the varying

effective force of punishment, the attitude of the public mind and

the natural tendency of criminalists to think only of their two

syllogistic symbols of crime and punishment--if we further add the

easy-going idea of the multitude, that the inscribing of a law in

the statute-book is a sufficient remedy for social diseases, we

can readily understand how this exaggerated and illusory

confidence in punishment is so persistent, and crops up in every

theoretical or practical discussion, in spite of the strong

refutation which is daily afforded by facts and psychological

observation.

All human actions, like the actions of animals, are developed

between the two opposite poles of pleasure and pain, by the

attraction of the former and the repulsion of the latter. And

punishment, which is one of the social forms of pain, is always a

direct motive in human conduct, as it is also an indirect guide,

by virtue of its being a sanction of justice, unconsciously

strengthening respect for the law. But still this psychological

truth, whilst it demonstrates the natural character of punishment,

and the consequent absurdity of abolishing it as absolutely void

of efficacy, does not destroy our conclusion as to the slight

efficacy of punishment as a counteraction of crime.

We have only to distinguish between punishment as a natural

sanction and punishment as a social sanction in order to see how

the really great power of natural punishment almost entirely

disappears in social punishment, which in all our systems is but a

sorry caricature.

The mute but inexorable reaction of nature against every action

which infringes her laws, and the grievous consequences which

inevitably follow for the man who has infringed them, constitute a

repression of the most efficacious kind, wherein every man,

especially in the earlier years of his life, receives daily and

never to be forgotten lessons. This is the discipline of natural

consequence, which is a genuine educational method, long since

pointed out by Rousseau, and developed by Spencer and Bain.

But in this natural and spontaneous form, the punishment derives

its whole force from the inevitable character of the consequences.

And it is one of the few observations of practical psychology

which have been made and repeated by the classical students

of crime, that in punishment, and especially the punishment of

death, the certainty is more effectual than the severity. And I

will add that even a small uncertainty takes away from a pain

which we fear, much of its repelling force, whereas even a great

uncertainty does not destroy the attraction of a pleasure which we

are hoping for.

Here, then, we have a primary and potent cause of the slight

efficacy of legal punishments, in the picturing of the many

chances of escape. First there is the chance of not being

detected, which is the most powerful spring of all contemplated

crime: then the chance, in case of detection, that the evidence

will not be strong enough, that the judges will be merciful, or

will be deceived, that judgment may be averted amidst the

intricacies of the trial, that clemency may either reverse or

mitigate the sentence. These are so many psychological causes

which, conflicting with the natural fear of unpleasant

consequences, weaken the repellent force of legal punishment,

whilst they are unknown to natural punishment.

There is also another psychological condition which, undermining

even the force of natural punishment, almost entirely destroys the

power of social punishment; and that is improvidence. We see, in

fact, that even the most certain natural consequences are defied,

and lose most of their power to guard an improvident man from

anti-natural and dangerous actions. Now in regard to legal

punishment, even apart from passionate impulse, it is known that

criminals, occasional and other, are specially improvident, in

common with savages and children. This weakness is

conspicuous enough in the lower and less instructed classes, but

amongst criminals it is a genuine characteristic of psychological

infirmity.

Now, whilst a very slight force is sufficient to produce very

great and constant effects, when it acts in harmony with natural

tendency and environment, every process, on the other hand, which

is opposed to the natural tendencies of man, or which does not

follow them closely, encounters a resistance which triumphs in the

last resort.

Everyday life gives us many examples. The university student,

when he gambles, risks on a single card the last remnant of his

allowance, and prepares for himself a thousand privations. Miners

and workmen at dangerous trades refuse to take warning by the

sight of comrades whom they have seen dying or repeatedly attacked

by disease. M. Despine related that, during the cholera of 1866,

at Bilbao, there were some who set up an imitation of the disease

in order to obtain charitable relief, though in several cases

death ensued. M. Fayet, in an essay on the statistics of accused

persons in France, extending over twenty years, remarked that

specific and proportionately greater criminality was displayed by

notaries and bailiffs, who knew better than any one else the

punishments fixed by law. And in the statistics of capital

punishment at Ferrara, during nine centuries, I discovered the

significant fact that there is a succession of notaries executed

for forgery, frequently at very short intervals, in the same town.

This attests the truth of the observation made by Montesquieu and

Beccaria, as against the deterrent power of the death

penalty, for men grow accustomed to the sight; and this again is

confirmed by the fact mentioned by Mr. Roberts, a gaol chaplain,

and M. B<e'>renger, a magistrate, that several condemned men had

previously been present at executions, and by another fact

mentioned by Despine and Angelucci, that in the same town, and

often in the same place, in which executions had been carried out,

murders are often committed on the same day.

A man does not change his identity; and no penal code, whether

mild or severe, can change his natural and invincible tendencies,

such as inclination to pleasure and persistent hope of impunity.

Let us also observe that, as Mill said, the permanent efficacy of

any measure in the spheres of politics, economy, and

administration, is always inversely proportional to its force and

suddenness. Now punishment does not stand the test even of this

sociological law, for in its essence it is only the primitive

reaction of force against force. It is true that, as Beccaria

said, the classical school has always aimed at rendering social

reaction against crime less violent; but that is not enough.

Henceforward, if we are to adapt ourselves to psychological and

sociological laws, the development of our defensive administration

must tend to render this social reaction less direct. If the

struggle for existence is always to remain the supreme law of

living creatures, yet it is not necessary that it should always be

developed in the violent forms of primitive humanity. On the

contrary, one of the results of social progress is to make the

struggle for existence less violent and less direct.

In the same way, the continuous struggle between society and

criminals, instead of being a physical and social force, directly

opposed to a physical individual force, should rather become an

indirect system of psychical forces. Penal law in society has the

same qualities as education in the family and pedagogy in schools.

All the three were once dominated by the idea of taming human

passions by force; the rod was supreme. In course of time it was

perceived that this produced unexpected results, such as violence

and hypocrisy, and then men thought fit to modify their

punishments. But in our own days schoolmasters see the advantage

of relying solely on the free play of tendencies and bio-

psychological laws. Similarly the defensive function of society,

as Romagnosi said, in place of being a physical and repressive

system, ought to be a moral and preventive system, based on the

natural laws of biology, psychology, and sociology.

Force is always a bad remedy for force. In the Middle Ages, when

punishments were brutal, crimes were equally savage; and society,

in demoralising rivalry with the atrocity of criminals, laboured

in a vicious circle. Now, in the lower social grades, the brutal

man, who often resorts to violence, is in his turn frequently the

victim of violence; so that, amongst criminals, a scar is somewhat

of a professional distinction.

To sum up, our doctrine as to the efficacy of punishments does not

consist, as some critics too sparing of their arguments have

maintained, in an absolute negation, but rather and especially in

objecting to the traditional prejudice that punishments are

the best and most effectual remedies of crime.

What we say is this. Punishment by itself, as a means of

repression, possesses a negative rather than a positive value; not

only because it has not the same influence on all anthropological

types of criminals, but also because its use is rather to preclude

the serious mischief which would result from impunity than to

convert, as some imagine that it can, an anti-social into a social

being. But impunity would lead to a demoralisation of the popular

conscience in regard to crimes and offences, to an increase of the

profound lack of foresight in criminals, and to the removal of the

present impediment to fresh crimes during the term of

incarceration.

It is the same with education, the modifying power of which is

commonly exaggerated. Education, though it has an enduring

influence on children, and is therefore more effectual than

punishment, is far more serviceable in eliminating anti-social

tendencies, whereof we all possess the germs, than in any supposed

creation of social tendencies and forces which were not present

from birth.

Thus, whilst the consequences of impunity and lack of education

are serious and mischievous, still this does not prove conversely

that punishment and education have in reality so positive an

influence as is commonly attributed to them.

It is precisely on the ground of this negative, yet real efficacy

of punishments, especially whilst they are being carried out,

that, whilst we appreciate the mitigation of punitive discipline

which has been achieved by the classical school, we

believe, on the other hand, that their abbreviation of the term of

punishments is altogether mistaken and dangerous. We admit that

punishment ought not to be an arbitrary and inhuman torture, and

for this reason we have no sympathy with the system of solitary

confinement, now so much in fashion with the classical jurists and

prison authorities, precisely because it is inhuman, as well as

unwise and needlessly expensive.

It is a psychological absurdity and a social danger, which

nevertheless underlies the new Italian penal code, that punishment

ought to consist more and more in a short isolation of the

prisoner. For, setting aside the well-known results of short

punishments, such as corruption and recidivism, it is evident that

in this way punishment is deprived of its main element of negative

efficiency against crime, as well as of its effect in preventing

crime during the incarceration of the criminal.

II.

Since punishments, instead of being the simple panacea of crime

which popular opinion, encouraged by the opinions of classical

writers on crime and of legislators, imagine them, are very

limited in their deterrent influence, it is natural that the

criminal sociologist should look for other means of social defence

in the actual study of crimes and of their natural origin.

We are taught by the everyday experience of the family, the

school, associations of men and women, and the history of social

life, that in order to lessen the danger of outbreaks of passion

it is more useful to take them in their origin, and in flank, than

to meet them when they have gathered force.

Bentham relates that in England the delays caused by hard-drinking

couriers, who used to be heavily fined without any good result,

were obviated by combining passenger traffic with the postal

service. Employers of labour secure industry and the most

productive work far more easily by offering a share of the

realised profits than by a system of fines. In the German

universities, academic jealousies and intolerance have been in

great measure overcome by paying the professors in proportion to

the number of their pupils, so that the Faculties find it to their

interest to engage and encourage the best professors, in order to

attract as many students as possible. Thus the activity and zeal

of professors, magistrates, and officials would be stimulated if

their remuneration depended not only on the automatic test of

seniority, but also on the progress displayed by publications,

sentences not reversed, settlements not cancelled, and the like.

It is better to regulate the disturbing restlessness of children

by timely diversions rather than by attempting to repress them in

a manner injurious to their physical and moral health. So in

lunatic asylums and prisons, work is a better means of order and

discipline than chains and castigation. In brief, we obtain more

from men by consulting their self-respect and interests than by

threats and restraint

If the counteraction of punishment must inevitably be opposed to

criminal activity, still it is more conducive to social order to

prevent or diminish this activity by means of an indirect and more

effective force.

In the economic sphere, it has been observed that when a staple

product fails, recourse is had to less esteemed substitutes, in

order to supply the natural wants of mankind. So in the criminal

sphere, as we are convinced by experience that punishments are

almost devoid of deterrent effect, we must have recourse to the

best available substitutes for the purpose of social defence.

These methods of indirect defence I have called _penal

substitutes_. But whereas the food substitutes are as a rule only

secondary products, brought into temporary use, penal substitutes

should become the main instruments of the function of social

defence, for which punishments will come to be secondary means,

albeit permanent. For in this connection we must not forget the

law of criminal saturation, which in every social environment

makes a minimum of crime inevitable, on account of the natural

factors inseparable from individual and social imperfection.

Punishments in one form or another will always be, for this

minimum, the ultimate though not very profitable remedy against

outbreaks of criminal activity.

These penal substitutes, when they have once been established in

the conscience and methods of legislators, through the teaching of

criminal sociology, will be the recognised form of treatment for

the social factors of crime. And they will also be more

possible and practical than that universal social metamorphosis,

direct and uncompromising, insisted on by generous but impatient

reformers, who scorn these substitutes as palliatives because

humanitarian enthusiasm causes them to forget that social

organisms, like animal organisms, can be only partially and

gradually transformed.

The idea of these penal substitutes amounts, in short, to this.

The legislator, observing the origins, conditions, and effects of

individual and collective activity, comes to recognise their

psychological and sociological laws, whereby he will be able to

obtain a mastery over many of the factors of crime, and especially

over the social factors, and thus secure an indirect but more

certain influence over the development of crime. That is to say,

in all legislative, political, economic, administrative, and penal

arrangements, from the greatest institutions to the smallest

details, the social organism will be so adjusted that human

activity, instead of being continually and unprofitably menaced

with repression, will be insensibly directed into non-criminal

channels, leaving free scope for energy and the satisfaction of

individual needs, under conditions least exposed to violent

disturbance or occasions of law-breaking.

It is just this fundamental idea of penal substitutes which shows

how necessary it is that the sociologist and legislator should

have such a preparation in biology and psychology as Mr. Spencer

justly insisted on in his ``Introduction to Social Science.'' And

it is the fundamental idea rather than the substitutes themselves

that we should bear in mind if we would realise their

theoretical and practical value as part of a system of criminal

sociology.

As for the efficacy of any particular penal substitute, I readily

admit, in some sense at least, the partial criticisms which have

been passed upon them. Apart from such as simply say that they do

not believe in the use of alternatives to punishment, and such as

confine themselves to the futile question whether this theory

belongs to criminal science or to police administration, a

majority of criminal sociologists have now definitely accepted the

doctrine of penal substitutes. This theory is accepted, not as an

absolute panacea of crime, but, as I have always stated it, in the

sense of a combination of measures analogous to penal repression;

in place of trusting solely to repression for the defence of

society against crime.

Let us take note of a few examples.

I. _In the Economic Sphere_.--Free Trade (apart from the

temporary necessity of protecting a particular manufacturing or

agricultural industry), by preventing famines and exceptional high

prices of and taxes on food, eliminates many crimes and offences,

especially against property.--Unrestricted emigration is a safety-

valve, especially for a country in which this phenomenon, assuming

large proportions, carries off many persons who are easily driven

to crime by wretchedness, or by their unbalanced energy. Thus the

number of recidivists has diminished in Ireland, not by virtue of

her prison systems, but by emigration, which reached forty-six per

cent. of released prisoners. In Italy, also, there has been a

decrease of crime since 1880, owing to other causes, such

as mild winters and plentiful harvests, but also through a vast

increase of emigration.--Smuggling, which for centuries resisted

extremely harsh punishments, such as amputation of the hand, and

even death, and which still resists prison and the fire-arms of

the revenue officers, is suppressed by the lowering of the import

tariff, as M. Villerm<e'> has shown in the case of France. So

that everyday facts justify the system of Adam Smith, who said

that the law which punished smuggling, after creating the

temptation, and which increased the punishment when it increased

the temptation, was opposed to all justice; whilst Bentham, on the

contrary, departing from his maxim that the punishment ought to be

dreaded more strongly than the offence attracted, called for the

stern repression of smuggling.--The system of taxation which

touches wealth and visible resources instead of the prime

necessaries of life, and which is proportional to the taxpayer's

income, diminishes the systematic frauds which no punishment

availed to stop, and it will also abolish the arbitrary and

exaggerated fiscal traditions which have been the cause of

rebellions and outrages. In fact, Fr<e'>gier describes the

criminal industries which are called into existence by _octrois_,

and which will disappear with the abolition of these absurd and

unjust duties. And whilst M. Allard demonstrated that a decrease

of taxes on necessaries would have beneficial effects, not only in

economic affairs but also in respect of commercial frauds, the

Report on French Criminal Statistics for 1872 calmly continued to

call for more severe repression of such frauds. To this M.

Mercier replied that if the cause--that is to say,

disproportionate taxes--were not removed, it would be impossible

to prevent the effects.--Immunity from taxation for the minimum

necessary to existence, by preventing distraint, and the

consequent diminution of small properties, which means the

increase of the very poor, will obviate many crimes, as we see

from the agrarian conditions in Ireland. Thus there is a demand

in Italy for the inalienability of small properties, as in America

under the Homestead Exemption Law.--Public works, during famine

and hard winters, check the increase of crimes against property,

the person, and public order. For instance, during the scarcity

of 1853-5 in France, there was no such enormous increase of theft

as during the famine of 1847, simply because the Government set up

vast relief works in the winter months.

The taxes and other indirect restrictions on the production and

sale of alcohol are far more efficacious than our more or less

enormous gaols. The question of pronounced and chronic

drunkenness has increased in gravity, owing to its effect upon the

physical and moral health of the people.

In France the average consumption of wine, estimated at 62 litres

(13.64 gallons) per head in 1829, exceeded 100 litres in 1869; and

in Paris the average of 120 litres in 1819-30, reached 227 litres

in 1881. The average yearly consumption of alcohol in France rose

from .93 in 1829 to 3.24 in 1872, and 3.9 in 1885, the rates in a

few towns being still higher. The total manufacture of alcohol in

France (95 per cent. of which is consumed in the form of

drink) rose from 479,680 hectolitres in 1843 to 1,309,565 in 1879,

and 2,004,000 in 1887. Simultaneously, we have seen that there

was an increase of crimes and offences in France, suicides in

particular having increased from 1,542 in 1829 to 8,202 in 1887.

Moreover I have shown by a special table (_Archivio di

Psichiatria_) that in France, despite a certain inevitable

variation from year to year, there is a manifest correspondence of

increase and decrease between the number of homicides, assaults,

and malicious wounding, and the more or less abundant vintage,

especially in the years of extraordinary variations, whether of

failure of the vintage (1853-5, 1859, 1867, 1873, 1878-80),

attended by a remarkable diminution of crime (assaults and

wounding), or of abundant vintages (1850, 1856-8, 1862-3, 1865,

1868, 1874-5) attended by an increase of crime.

I was also the first to show that in the vintage months there is

an increase of occasional crimes and offences against the person,

owing to that connection between drink and crime which had already

been remarked upon by M. Pierquin amongst others, and illustrated

by the newspaper reporters on the days which follow Sundays and

holidays.

But apart from their natural variation, the connection between

drink and crime is definitely established. Every day we have the

confirmation of Morel's statement, that ``alcoholism has produced

a demoralised and brutalised class of wretched beings,

characterised by an early depravation of instincts, and by

indulgence in the most immoral and dangerous actions.'' It is

useless to quote again in this place the data of psycho-

pathology and legal medicine, or those of prison statistics

relating to imprisoned drunkards, or to tavern brawls as the

proved causes of crime.

Nevertheless it is a fact that the relation of cause and effect

between drink and crime has recently been denied, with the aid of

arguments based upon statistics. M. Tammeo opened the discussion

by observing that the countries of Europe and the provinces of

Italy distinguished by the largest consumption of alcohol, show

lower ratios under the worst crimes of violence. He gave to his

remark a relative and limited value, for he only denied that the

abuse of liquor was the most active cause of crime. After him M.

Fournier de Flaix, maintaining the same proposition with the same

statistical arguments, and admitting that ``alcohol is a special

scourge for the individual who indulges in it,'' yet concluded

that ``alcoholism is not a scourge which menaces the European

race.'' And he repeated that the nations which consumed the

greatest quantity of alcohol show a slighter frequency of crime,

especially against the person. Lastly M. Colajanni enlarged upon

the same proposition, using the statistical data so fully set out

by M. Kummer, and drew a still more positive conclusion, that

``there is a lack of constancy, regularity, and universality in

the relations, coincidence, and sequence, as between alcoholism

and crime and suicide; so that it is impossible to establish any

statistical relation of cause and effect between these

phenomena.''

Passing over the grave errors of fact in M. Colajanni's brochure,

I will only observe that this proposition is a pure

misapprehension of statistical logic.

If we once admit (and unfortunately it cannot be denied) the bad

influence of alcohol on bodily and mental health, in the form of

spirits as well as of wine--as to which it is not correct to say

that the southern departments are not consumers of alcohol--it

cannot be maintained that alcohol, which is physically and morally

injurious to individuals, is not hurtful to nations, which are but

aggregates of individuals.

There is an easy answer to the statistical arguments. (1) A

symmetrical and continuous agreement of figures is never found in

any collection of statistics, for in all that concerns a society

the intervention of individual, physical, and social causes is

inevitable. (2) A negative conclusion from these partial and

natural disagreements (for it is especially true in biology and

sociology that every rule has its exceptions, due to intervening

causes) would only be justified if it had been maintained that

alcoholism is the sole and exclusive cause of crime. But as this

has never been asserted by anybody, all the statistical arguments

of Fournier and Colajanni are based on a misapprehension. And

unfortunately they do not destroy the link of causality between

drink and crime. This connection is occasional, in assaults,

wounding, and homicide in acute alcoholism. It is habitual, in

the case of chronic alcoholism, as in crimes against property, the

person, morality, and public officers. And this in spite of the

relatively low figures, though lower than the facts warrant,

contained in the general statements, apart from special and

scientific inquiries into alcoholism as a direct and manifest

cause of crime and suicide.

I wrote as early as 1881 that alcoholism, prior to its becoming a

cause, is the effect of wretched social conditions in the poorer

classes; and that to the one-sided simplicity of economic causes

it is necessary to add certain bio-psychical conditions and

conditions of physical environment, which go far to determine the

geographical distribution of spirit-alcoholism (chronic and more

serious, in northern countries and provinces) and wine-alcoholism

(acute and less deep-seated, in the countries and provinces of the

south).

It was therefore natural that indirect measures against alcoholism

should have been resorted to long ago, such as the raising of the

tax on alcoholic drinks, and the lowering of that on wholesome

beverages, such as coffee, tea, and beer; strict limitation of the

number of licenses; increased responsibility of license-holders

before the law, as in America; the expulsion of tipsy members from

workmen's societies; the provision of cheap and wholesome

amusements; the testing of wines and spirits for adulteration;

better organised and combined temperance societies; the

circulation of tracts on the injurious effects of alcohol; the

abolition of certain festivals which tended rather to

demoralisation than to health; discouragement of the custom of

paying wages on Saturday; the establishment of voluntary

temperance homes, as in America, England, and Switzerland.

North America, England, Sweden and Norway, France, Belgium,

Holland, and Switzerland have applied remedies against drunkenness

(to the length of a State monopoly of drink in Switzerland); but

with too much zeal for public revenue, and, under the pretext of

public health, almost exclusively framed with a view to duties on

manufacture, distribution, and consumption. Yet these duties are

quite inadequate by themselves, and may even tend to the injury of

the physical and moral health of the nation, the increase of

price, leading to frauds and adulteration.

Penal laws against drunkenness, naturally resorted to in all

countries, are far from being effectual. There is so far no

system of direct and indirect measures against alcoholism, duly

co-ordinated, beyond taxation and punishment. And we perceive, as

for instance in France, in spite of the repressive law introduced

by my distinguished friend Senator Roussel (January, 1873), and in

spite of the extremely high duties, which were doubled in 1872 and

1880, that alcoholism persists with a terrible and fatal increase.

So it is, more or less, in every country still, in spite of duties

and punishments.

The irregularity of wages, and the deceitful vigour imparted by

the first recourse to alcohol, the poverty and excessive toil of

the working classes, insufficiency of food, inherited habits, and

the lack of efficacious preventive measures, are influences which

prevent the working man from resisting this scourge; and no fiscal

or repressive law, acting solely by direct compulsion, will ever

be able to paralyse these natural tendencies, which can only be

weakened by indirect measures. On the other hand, when we

remember that habitual intoxication, so common in medi<ae>val days

amongst the nobles and townsfolk, has grown less and less frequent

in those classes (aided by the introduction and rapid diffusion of

coffee since the time of Louis XIV.), it is possible to hope that

the improvement of economic, intellectual, and moral conditions

amongst the populace will gradually succeed in modifying this

terrible plague of drink, which cannot be cured all at once.

To continue our illustrations of penal substitutes, we see that

the substitution of metallic money for a paper medium decreases

the number of forgers, who on the contrary had defied penal

servitude for life. False money is more easily detected than a

spurious note.[14]--Money dealers and dealers in precious stones

have done more than any punishment to check the crime of usury, as

was shown in the case of Spain, after her American conquests;

whereas medi<ae>val punishments never prevented the recrudescence

of usury in one form or another. Popular and Agricultural Credit

Banks, which are practically within the reach of all, are more

efficacious against usury in our own days than the special

repressive laws enacted once more in Germany and Austria, under

the influence of the old illusion.--With the diminution of

interest on the public funds the stream of capital has been

diverted into commerce, manufactures, and agriculture, thus

warding off stagnation, with the bankruptcies, forgeries,

frauds, &c., which result therefrom.--The adjustment of salaries

to the needs of public officials, and to general economic

conditions, stems the tide of corruption and embezzlement, which

were partly due to their concealed poverty.--Limited hours of duty

for the responsible services on which the safety of the public

depends, as for instance in railway stations, are far more

serviceable in preventing accidents than the useless punishment of

those who are guilty of manslaughter.--High-roads, railways, and

tramways disperse predatory bands in rural districts, just as wide

streets and large and airy dwellings, with public lighting and the

destruction of slums, prevent robbery with violence, concealment

of stolen goods, and indecent assaults.--Inspection of workshops

and shorter hours for children's labour, with their

superintendence of married women, may be a check on indecent

assaults, which penal servitude does not prevent.--Cheap workmen's

dwellings, and general sanitary measures for houses both in urban

and rural districts, care being taken not to crowd them with poor

families, tend to physical health, as well as to prevent many

forms of immorality.--Co-operative and mutual societies, provident

societies and insurance against old age, funds for sick and infirm

workmen, employers' liability for accidents during work, from

machinery or otherwise; popular savings' banks, charity

organisation societies and the like, obviate a large number of

offences against property and the person much better than a penal

code.--I have maintained in the Italian Parliament that the reform

of religious charities, which in Italy represent funds to

the amount of two milliards, might lead to the prevention of

crime.--Measures for the discouragement of mendicity and vagrancy,

above all agricultural colonies, as in Holland, Belgium, Germany,

and Austria, would be the best penal substitute for the very

frequent offences committed by vagabonds. Thus it may be

concluded that a prudent social legislation, not stopping short at

mere superficial and perfunctory reforms, might constitute a

genuine code of penal substitutes, which could be set against the

mass of criminal impulses engendered by the wretched conditions of

the most numerous classes of society.

[14] Coiners and forgers of notes constitute .09 per cent. of the

total of condemned persons in France, and .04 per cent. in

Belgium; but they reach .4 per cent. in Italy, on account of the

greater circulation of banknotes.

II. _In the Political Sphere_.--For the prevention of political

crime, such as assassination, rebellion, conspiracies, civil war,

arbitrary repression and prevention by the police are powerless;

there is no other means than harmony between the Government and

the national aspirations. Italy has been a conspicuous example of

this, for under the rule of the foreigner, neither the scaffold

nor the galleys could hinder political outrages, which have

disappeared with national independence. So with Ireland and

Russia. Germany, which believed that it could stamp out socialism

by exceptional penal laws, discovered its mistake.--For so-called

press offences (which are either ordinary offences committed by

the aid of the press, or are not offences at all), nothing but

freedom of opinion can render attacks and provocations of a

political type less frequent.--Respect for the law spreads through

a nation by the example on the part of the governing classes and

authorities of constant respect for the rights of

individuals and associations, far better than by policemen and

prisons.--Electoral reform adapted to the condition of a country

is the only remedy against electoral offences.--Similarly, in

addition to the economic reforms already indicated, political and

parliamentary reforms are much more serviceable than the penal

code in preventing many offences of a social and political type,

provided that a more real harmony has been established between a

country and its lawful representation, and that the latter is

freed from the occasions and the forms which lead to its abuse, by

removing technical questions from injurious political influences,

and giving the people a more direct authority over public affairs,

including the _referendum_.--Finally, that great mass of crimes,

isolated or epidemic, evolved by unsatisfied needs and the neglect

of separate divisions of a country, which differ in climate, race,

traditions, language, customs, and interests, would be largely

eliminated if we were to dispense with the vague folly of

political symmetry and bureaucratic centralisation, and in their

place to adapt the laws to the special features of the respective

localities. National unity in no way depends upon legislative and

administrative uniformity, which is merely its unhealthy

exaggeration. It is indeed inevitable that laws, which in our day

merely represent a mode of contact between the most varied moral,

social and economic conditions of different localities, should

always be inadequate to social needs--too restricted and slow in

action for one part of the country, too sweeping and premature for

another part, just as the average convict's garb is too

long for those who are short, and too short for those who are

tall. Administrative federation with political unity (_e pluribus

unum_) would furnish us with an aggregate of penal substitutes,

restoring to each part of the social organism that freedom of

movement and development which is a universal law of biology and

sociology--for an organism is but a federation too lightly

appreciated by the advocates of an artificial uniformity, such as

ends by conflicting with unity itself.

III. _In the Scientific Sphere_.--The development of science,

which creates fresh instruments of crime, such as fire-arms, the

press, photography, lithography, new poisons, dynamite,

electricity, hypnotism, and so forth, sooner or later provides the

antidote also, which is more efficacious than penal repression.--

The press, anthropometric photography of prisoners, telegraphy,

railways, are powerful auxiliaries against crime.--Dissection and

the progress of toxicology have decreased the number of poisoning

cases; and experience has already proved that ``Marsh's

preparation'' has rendered poisoning by arsenic, once so common,

comparatively rare.--A similar process has recently been suggested

as a means of detection in cases of forgery, for when documents

are exposed to iodine vapour, effaced or altered writing is

restored.--Women doctors will diminish the opportunities of

immorality.--The free expression of opinion will do more to

prevent its possible dangers than trials of a more or less

scandalous kind.--Piracy, which was not extirpated by

punishments which are now obsolete, is disappearing under the

effects of steam navigation.--The spread of Malthusian ideas

prevents abortion and infanticides.[15]--Systematic bookkeeping,

by its clearness and simplicity, obviates many frauds and

embezzlements, which were encouraged by the old complicated

methods.--Cheques, by avoiding the necessity of frequent

conveyance of money, do more to prevent theft than punishments can

do.--The credentials given by some banks to their clerks, whose

duty it is to witness the signature of the actual debtor, prevent

the falsification of bills.--Certain bankers have adopted the

practice of taking an instantaneous photograph of every one

presenting cheques for large amounts.--Safes, bolts, and alarm-

bells, are a great security against thieves. --As a

preventive of murder in railway carriages, it has been found that

alarm signals and methods of securing the carriage-doors from the

inside, are more effectual than penal codes.

[15] No doubt there may be a difference of opinion on this subject

in France, where public opinion is too much exercised over the

problem of depopulation. I agree with M. Varigny (``La Th<e'>orie

du Nombre,'' _Revue des Deux Mondes_, Dec. 15, 1890) that the

population of a country is not the sole, or even the principal

consideration. Apart from physical characteristics (race),

intellectual and moral qualities, and the productiveness of the

soil on which M. Varigny dwells, we must take into account, as it

seems to me, the unquestionable law by virtue of which the

struggle for existence, amongst individuals as amongst nations,

becomes gradually less vehement and direct. War, which is an

everyday matter with savages, grows constantly more rare and

difficult. The varying social and international conscience of

civilised humanity is not to be neglected, and it must be reckoned

with as a positive factor in considering the destiny of nations.

Men continue to speak of the perils of war (in which numbers stand

for a great deal, but are not the exclusive element) as though the

social conscience of our own day were still the same as that of

the Middle Ages. In several respects, on the other hand, the

thinner population of France is one cause of its wealth, and

therefore of its power. Germany has a more numerous, but also a

poorer population. And I do not believe that the actual power of

nations, on which their future depends, consists in loading a

people with arms after enfeebling it by military expenditure,

which from the year 1880 has indicated a distinct epidemic mania

on the continent of Europe.

IV. _In the Legislative and Administrative Sphere_.--Wise

testamentary legislation prevents murders through the impatient

greed of next-of-kin, as in France during a former age, with what

was known as ``succession powder.''--A law to facilitate the

securing of paternal assent for the marriage of children (as

suggested by Herschel in his ``Theory of Probabilities'') in

countries which require the assent of both parents, and for

affiliation and breach of promise of marriage, with provision for

children born out of wedlock, are excellent as against

concubinage, infanticide, abortion, exposure of infants, indecent

assaults, and murders by women abandoned after seduction. On this

head Bentham said that concubinage regulated by civil laws would

be less mischievous than that which the law does not recognise but

cannot prevent.--Cheap and easy law is a preventive of crimes and

offences against public order, the person and property, as I have

already said.--The ancient Italian institution of Advocate of the

Poor, if substituted for the present illusory assistance by the

courts, would prevent many acts of revenge. So also would a

strict and speedy indemnity for the victims of other men's crimes,

intrusted to a public minister when the injured person is not able

to resort to the law; for as I have maintained, with the approval

of sundry criminal sociologists, civil responsibility for crime

ought to be as much a social obligation as penal

responsibility, and not a mere private concern.--Simplification of

the law would prevent a large number of frauds, contraventions,

&c., for, apart from the metaphysical and ironical assertion that

ignorance of the law excuses no man, it is certain that our forest

of codes, laws, decrees, regulations and so forth, leads to

endless misapprehensions and mistakes, and therefore to

contraventions and offences.--Commercial laws on the civil

responsibility of directors, on bankruptcy proceedings and the

registration of shareholders, on bankrupts' discharges, on

industrial and other exchanges, would do more than penal servitude

to prevent fraudulent bankruptcy.--Courts of honour, recognised

and regulated by law, would obviate duels without having recourse

to more or less serious punishments.--A well organised system of

conveyancing checks forgery and fraud, just as registration

offices have almost abolished the palming and repudiation of

children, which were so common in medi<ae>val times. Deputy

Michelin, in order to discourage bigamy, proposed in 1886 to

institute in the registers of births for every commune a special

column for the civil standing of each individual, so that any one

who contemplated marriage would have to produce a certificate from

this register, and thus would be unable to conceal a previous

marriage which had not been dissolved by death or divorce.--The

form of indictment by word of mouth in penal procedure has

prevented many calumnies and false charges.--Foundling and orphan

homes, or, still better, some less old-fashioned substitute, such

as lying-in hospitals and home attendance for young

mothers, might do much to prevent infanticide and abortion, which

are not checked by the severest punishment.--Prisoners' aid

societies, especially for the young, might be useful as penal

substitutes, although much less so than is generally alleged, with

plenty of eloquence and little practical work. There is always

this strong objection to them, that we ought to succour workmen

who continue honest in spite of their wretchedness before those

who have been in prison; and again, in place of bestowing

patronage on released prisoners without distinction, many of whom

are incorrigible, we ought to select the occasional criminals and

criminals of passion, who alone are capable of amendment; and

assisting them we should avoid anything like police formalities.

As a matter of fact it appears that, even in England, where these

societies are most active, their intervention, like all direct

charity, is too far below the needs of those for whom provision is

necessary.

V. _In the Sphere of Education_.--It has been proved that mere

book education, whilst it is useful in rendering certain gross

frauds more difficult, in extending a knowledge of the laws, and

above all in diminishing improvidence, so characteristic of the

occasional criminal, is far from being the panacea of crime which

people imagined when they found in the criminal statistics a large

proportion of illiterate prisoners. It must also be said that

schools which are not closely inspected are frequently hotbeds of

immorality. It is necessary, therefore, to rely on the influence

of a wider education, limited though this may be in its

turn. I do not mean a mechanical instruction in moral maxims,

appealing to the intelligence without reaching the feelings, but

rather of the examples afforded by every kind of social

institution, by the government and the press, by the school of the

stage and of public entertainments.--It would be well, however, to

abolish certain vulgar and sensual entertainments, and to

substitute for them wholesome amusements and exercises, public

baths, properly superintended, and so built as to render private

meetings impossible, cheap theatres, and so forth. Thus the

prohibition of cruel spectacles, and the suppression of gambling

houses, are excellent penal substitutes.--The experimental method

in the teaching of children, which applies the laws of physio-

psychology, according to the physical and moral type of each

pupil, and by giving him less of archaology, and more knowledge

serviceable in actual life, by the mental discipline of the

natural sciences, which alone can develop in him a sense of the

actual, such as our classical schools only enfeeble, would adapt

men better for the struggle of existence, whilst diminishing the

number of those left without occupation, who are the candidates of

crime.--Many of the causes of crime would be nipped in the bud by

checking degeneration through physical education of the young, as

well as by preventing demoralisation by means of the education of

abandoned children, at such institutions as the workhouse, ragged

and industrial schools, so well developed in England--or, still

better, by the boarding out of children, so as to avoid over-

crowding.--One class of inducements to crime would be

eliminated by restrictions imposed on scandalous publications

which concern themselves exclusively with crime, having no other

object than to trade upon the most brutal passions, and which are

allowed to exist under an abstract conception of liberty, save

that the responsible conductors are punished when the evil has

been done.--Similarly there ought to be some restriction upon the

right of admission to police-courts and assizes, where our women

hustle each other as the Roman women of the decline scrambled to

be present at the imperial circus-shows, and where our young men

and our hardened criminals receive lessons in the art of

committing crimes with greater smartness and precaution.

The instances which I have given, and which might be multiplied

into a preventive code as long as the penal code, prove to

demonstration how large a part is played by social factors in the

genesis of crime, and especially of occasional crime. But they

prove still more clearly that the legislator, by modifying these

causes, can influence the development of crime within limits

imposed by the competition of other anthropological and physical

factors. Quetelet was right, therefore, when he said in this

connection, ``Since the crimes committed every year seem to be the

necessity of our social organisation, and their number cannot be

diminished if the causes to which they are due cannot be modified

in a preventive sense, it behoves legislators to recognise these

causes, and to eliminate them as far as possible. They must frame

the budget of crime as they frame that of the national

revenue and expenditure.''

It must nevertheless be borne in mind that all this will have to

be done apart from the penal code; for it is true, however

strange, that history, statistics, and direct observation of

criminal phenomena prove that penal laws are the least effectual

in preventing crime, whilst the strongest influence is exercised

by laws of the economic, political, and administrative order.

In conclusion, the legislator should be convinced by the teaching

of scientific observation that social reforms are much more

serviceable than the penal code in preventing an inundation of

crime. The legislator, on whom it devolves to preserve the health

of the social organism, ought to imitate the physician, who

preserves the health of the individual by the aid of experimental

science, resorts as little as possible, and only in extreme cases,

to the more forcible methods of surgery, has a limited confidence

in the problematic efficiency of medicines, and relies rather on

the trustworthy processes of hygienic science. Only then will he

be able to avoid the dangerous fallacy, ever popular and full of

life, which Signor Vacca, Keeper of the Seals, expressed in these

words: ``The less we have recourse to preventive measures, the

more severe ought our repression to be.'' Which is like saying

that when a convalescent has no soup to pick up his strength, we

ought to administer a drastic drug.

It is precisely on this point that the practical, rather than the

merely theoretical, differences between the positive and the

classical schools of penal law become evident. Whilst we believe

that social reforms and other measures suggested by a study

of the natural factors of crime are most effective in preventing

crime, legislators, employing the _a{sic} priori_ method of the

classical school, have for many years past been discussing

proposed penal codes, whilst they permit criminality to make

steady progress. It is another case of _Dum Rom<ae> consulitur,

Saguntum expugnatur_.

And when the legislators find their Byzantine discussions on the

``juridical entities'' of crime and punishment broken in upon by a

recrudescence of crime, or by a serious manifestation of some

phenomenon of social pathology, then all they can do in their

perplexity and astonishment is to pass some new repressive law,

which for a moment stills the outcry of public opinion, and remits

the matter once more from the acute to the chronic phase.

The positive theory of penal substitutes, apart from any

particular example, aims precisely at furnishing a mental

discipline for legislators, and bringing home to them the duty of

constant reinforcements of social prevention, no matter how

difficult it may be, before the evil comes to a head, and forces

them too late to a course of repression which is as easy as it is

fallacious. No doubt it is vexatious and difficult, even in

private life, to be perpetually living up to rules of health; and

it is easier, if more dangerous, to forget them, and to fly, when

the mischief declares itself, to drugs which are too frequently

deceptive; but it is just the want of forethought, both public and

private, which it is so important to overcome. And as hygienic

science was not possible as a theory or as a practice until after

the experimental observations and physio-pathology on the

causes of disease, especially of epidemic and infectious diseases,

together with the discoveries of M. Pasteur, who created

bacteriology; so social hygiene as against crime was only possible

as a theory, and will not be so as a practice, till the diffusion

of the facts of biology and criminal sociology relating to the

natural causes of crime, especially of occasional crime.

The great thing is to be convinced that, for social defence

against crime, as for the moral elevation of the masses of men,

the least measure of progress with reforms which prevent crime is

a hundred times more useful and profitable than the publication of

an entire penal code.

When a minister introduces a law, for instance, on railways,

customs duties, wages, taxation, companies, civil or commercial

institutions, there are few who think of the effect which these

laws will have on the criminality of the nation, for it is

imagined that sufficient has been done in this respect by means of

reforms in the penal code. In the social organism, on the other

hand, as in individuals, there is an inevitable solidarity, though

frequently concealed, between the most distant and different

parts.

It is just from these laws of social physiology and pathology that

we derive the notion of penal substitutes, which at the same time

we must not dissociate from the law of criminal saturation. For

if it is true that by modifying the social factors we can produce

an effect on the development of crime, and especially of

occasional crime, it is also true, unfortunately, that in every

social environment there is always a minimum of inevitable

criminality, due to the influence of the other factors, biological

and physical. Otherwise we might easily fall into the opposite

and equally fallacious illusion of thinking that we could

absolutely suppress all crimes and offences. For it is easy to

reach on one side the empiric idea of penal terrorism, and on the

other side the hasty and one-sided conclusion that to abolish some

particular institution would get rid of its abuses. The fact is

that we must consider before all things whether it is not a less

evil to put up with institutions, however inconvenient, and to

reform them, than to forfeit all the advantages which they afford.

And it must above all be borne in mind that as society cannot

exist without law, so law cannot exist without offences against

the law. The struggle for existence may be fought by honest or

economic activity, or by dishonest and criminal activity. The

whole problem is to reduce to a minimum the more or less criminal

rufflings and shocks, yet without disturbing ``social order,''

amidst the indifference or servility of a spiritless people, or

resorting to policemen and prisons on every slight occasion.

These general observations on penal substitutes in connection with

the law of criminal saturation are a sufficient answer to the two

chief objections raised even by such as agree with me in theory.

It has been urged, in effect, that some of the penal substitutes

which I have enumerated have already been applied, without

preventing crime; and again, that there were some institutions

which it would be absurd to abolish because the removal of a

prohibition would also remove the contravention.

The aim of penal substitutes is not to render all crimes and

offences impossible, but only to reduce them to the least possible

number in any particular physical and social environment. There

are crimes of piracy to this day, but the use of steam in

navigation has, none the less, been more effectual than all the

penal codes. Murders still occur, though very rarely, on the

railways; but it is none the less true that the substitution of

the railways and tramways for the old diligences and stage coaches

has decimated highway robberies, with or without murder. Divorce

does not eliminate wife-murder as a consequence of adultery, but

it diminishes its frequency. Similarly, after the protection

which is afforded to abandoned children, we shall not be able to

close the tribunals through the absence of crimes and offences,

but it is certain that the supply of these will be notably

diminished.

As for the second objection, I was careful to say, in regard to

existing institutions, that we must naturally consider whether the

evil arising from violating them or that which would be due to

their suppression is the greater. But my main contention is that

by reforming these institutions we can do more to prevent crime

than by leaving them as they happen to be, or at most granting

them the fallacious protection of one or two articles in the penal

code.

I will myself add a criticism of the theory of penal substitutes,

and it is that they are difficult of application. We have only to

think of the immense force of inertia in the habits, traditions

and interests which have to be overcome before we can secure the

application, not of all, but of any one of the penal

substitutes which I have enumerated. And some of these are not

simple, or based on a single principle, but comprise an assemblage

of co-ordinated reforms, like the prevention of drunkenness, the

protection of abandoned children, the accessibility of justice,

and so forth.

But if legislators must take into account the actual conditions of

the people, and adapt themselves to conditions of time and place,

it is the business of science to indicate the goal, however

distant and difficult to reach. The first condition of attaining

legislative and social reforms is that they should impress

themselves beforehand on the public conscience; and this is not

possible if science, in spite of transitory difficulties, does not

resolutely open up the road which has to be travelled, without any

compromise with eclecticism, which means for science what

hybridism means for organic life.

Two other objections may be made on the ground of principle to

what has been said. The first is that this system of penal

substitutes is only the familiar process of prevention of crime.

The second is that the criminal expert need not concern himself

with it, since prevention is only a question of good government,

which has nothing to do with the study of crimes and punishments.

My answer to the second objection is that the importance of taking

measures to prevent crime has certainly been dwelt upon,

especially from the time of Montesquieu and Beccaria, but it has

been only by way of platonic and isolated declaration, with

no such systematic development as might have given them practical

application, based on experimental observations. Moreover, this

prevention has always been held as subsidiary to repression,

whereas we have arrived at the positive conclusion that

prevention, instead of being a mere secondary aid, should

henceforth become the primary defensive function of society, since

repression has but an infinitesimal influence upon criminality.

Furthermore, it is important to observe the profound distinction

between ordinary prevention and penal substitutes; or in other

words, between prevention by police and prevention by society.

The former merely seeks to prevent crime when its germ is already

developed and active, and it nearly always employs methods of

direct coercion, which, being themselves repressive in their

character, are often inefficacious, even if they do not provoke

additional offences. Social prevention, on the other hand, begins

with the original sources of crime, attacking its biological,

physical, and social factors, by methods which are wholly

indirect, and which rest upon the free play of psychological and

sociological laws.

Science, as well as the making of laws, has hitherto been too much

influenced by a preference for repression, or at least for

administrative police prevention. ``There have been authoritative

works and learned folios,'' says Ellero, ``which dealt not only

with punishment, but also with torture; there has been none

dealing with the provision of means for providing an alternative

to punishment.''

After the general observations of Montesquieu, Filangieri,

Beccaria, and more recently Tissot, on the influence of religion,

climate, soil, and the form of government, upon the penal system

rather than the prevention of crime, the authors who studied

prevention with wider and more systematic views (excluding the

criminal sociologists who have more or less taken the positive

point of view), are Bentham, Romagnosi, Barbacovi, Carmignani,

Ellero, Lombroso, and a few Englishmen, who, without making much

of the theory, have made many practical suggestions of preventive

reform. But even these writers either confine themselves to

general synthetic considerations, like Romagnosi and Carmignani,

or else, entering the domain of facts, and even accepting the idea

of social prevention, have made too little of those physio-

psychological laws as the natural factors of crime, which alone

can furnish a method of regulating human activity. And, when all

is said and done, they have clung to punishment as the chief

method of prevention.

Hence their teaching and their propositions have had no weight

with legislators, for these latter had not been convinced, as only

the criminal sociologist could convince them, that punishments are

far from having the deterrent force commonly attributed to them,

and that crime is not the outcome of free will, but rather a

natural phenomenon which can only disappear or diminish when its

natural factors are eliminated.

The legislators for their part have not only neglected the

definite teaching of these authors with more than ordinary

insight, but they have also enacted what are really penal

substitutes in a clumsy and unscientific manner.

We have thus studied the data of criminal statistics in their

theoretical and practical relations with criminal sociology, and

come to the conclusion that, since crime is a natural phenomenon,

determined by factors of three kinds, it answers on that account

to a law of criminal saturation, whereby the physical and social

environment, aided by individual tendencies, hereditary or

acquired, and by occasional impulses, necessarily determine the

extent of crime in every age and country, both in quantity and

quality. That is to say, the criminality of a nation is

influenced in the natural sphere by the bio-psychical conditions

of individuals and their physical environment, and, in the social

sphere, by economic, political, administrative and civil

conditions of laws, far more than by the penal code.

Nevertheless the execution of punishment, though it is the less

important part of the function of social defence, which should be

carried out in harmony with the other functions of society, is

always the last and inevitable auxiliary.

And this entirely agrees with the universal law of evolution, in

virtue of which, amidst the variation of animal and social

organisms, antecedent forms are not wholly eliminated, but

continue as the basis of the forms which succeed them. So that if

the future evolution of the social administration of defence

against crime is to consist in the development of the primitive

forms of direct physical coercion into the higher forms of

indirect psychical discipline of human activity, this will

not imply that the primitive forms must entirely disappear,

especially for the gravest crimes, which, in the biological and

psychological conditions of those who commit them, take us back to

the primitive epochs and forms of individual and social violence.

I end with a modification of an old comparison which has been much

abused. Crime has been compared to an impetuous torrent which

ought to be enclosed between the dykes of punishment, lest

civilised society should be submerged. I do not deny that

punishments are the dykes of crime, but I assert that they are

dykes of no great strength or utility. All nations know by sad

and chronic experience that their dykes cannot save them from

inundations; and so our statistics teach us that punishments have

but an infinitesimal power against the force of criminality, when

its germs are fully developed.

But as we can best protect ourselves against inundations by

obeying the laws of hydrostatics and hydrodynamics, by timbering

the banks near the source of the stream, and by due rectilineation

or excavation along its course and near its mouth, so, in order to

defend ourselves against crimes, it is best to observe the laws of

psychology and sociology, and to avail ourselves of social

substitutes, which are far more efficacious than whole arsenals of

repressive measures.

In the same way, from the standpoint of criminal sociology, we may