CHAPTER III._Criminal Sociology

_PRACTICAL REFORMS_.

THE data of criminal anthropology and statistics, and the positive

theory of responsibility which flows from them, although they have

been systematised only by the positive school, are nevertheless

too constantly in evidence not to have made their way into courts

and parliaments.

I have already spoken of penal jurisprudence in its relations with

criminal sociology, and may now cite a few examples of the more or

less direct and avowed influence of the new data on penal

legislation.

The legislators of to-day, vaguely impressed by statistical and

biological, ethnographical and anthropological data, and still

imbued with the old prejudice of social and political

artificiality, were at first hurried into a regular mania for

legislation, under which every newly observed social phenomenon

seemed to demand a special law, regulation, or article in the

penal code. Then, as Spencer has said in one of his most

brilliant essays, the citizen finds himself in an inextricable

network of laws, decrees, regulations and codes, which surround

him, support him, fetter and bind him, even before his birth and

after his death. For those whom M. Bordier calls

the gardeners and trussmakers of society, forgetting the natural

character of social phenomena, picture society as so much paste,

to which the cook may give any form he pleases, whether pie-crust,

dumpling, or tart.

Hence we see on all sides, side by side with dogma in the

classical sciences of law, economy, and politics, empiricism in

the laws themselves. And that is why the practical defects and

constant impotence of repression in penal justice are the most

eloquent arguments of the experimental school, which extends and

strengthens its own theoretical inductions by the practical

reforms which it suggests.

A first example of the influence more directly exercised by the

new ideas in penal legislation is furnished by the proposal

already realised in the penal laws of Holland, Italy, &c., of two

parallel systems of punishment by detention--one for the graver

and more dangerous crimes, and the other, ``simple detention,'' or

_custodia honesta_ (``as a first-class misdemeanant''), for

contraventions, involuntary offences, and crimes not inspired by

the baser passions.

Similarly, the enumeration contained in certain codes, as in

Spain, and in the old Mancini draft of a penal code in Italy, of

the main aggravating and extenuating circumstances common to all

crimes and offences, such as the antecedents of the accused,

venial or inexcusable passion, repentance and confession of a

crime, extent of injury or the like, is only an elementary and

empiric form of the biological and psychological classification of

criminals.

Thus also the foundation of asylums for the detention of lunatic

criminals, in spite of their being acquitted of moral

responsibility; the more and more vigorous, but often too

empirical measures against the progressive increase of recidivism;

the proposed repressive measures as alternatives to short terms of

detention; the reaction against the exaggerations of cellular

confinement, which I regard as one of the aberrations of the

nineteenth century, are all manifest proofs of the more or less

avowed and logical influence of the data of criminal biology and

sociology on contemporary penal legislation.

These practical reforms, which, when grafted on the old trunk of

the classical theories of crime and punishment, are mere arbitrary

and misplaced expedients, really represent, when they are

logically co-ordinated and completed, the new system of social

defence againt{sic} crime, which is based on the scientific data

and inductions of the positive school, and which it is therefore

necessary for us to trace out from its foundations.

In the first place, whilst the positive theories largely reduce

the practical importance of the penal code, yet they do more to

increase the importance of the rules of penal procedure, which are

intended to give practical and daily effect to penal measures, for

the defence of society against criminals. For, as I maintained in

the Italian Parliament, if the penal code is a code for evil-

doers, that of penal procedure is a code for honest people,

who are placed on their trial but not yet found guilty.

This is all the more true because, if it is possible to have penal

codes whose machinery of psychological coercion is planted on a

platonic platform of penitentiary systems written out fair in

their symmetrical clauses, but still non-existent, as is the case

in Italy, this is not possible in regard to penal procedure. The

regulations of the code of ``instruction'' must of necessity be

carried out by a judicial routine. The penal code may remain a

dead letter, as, for instance, when it says that punishment by

detention is to be inflicted in prisons constructed with cells;

for, happily, the cells necessary in Italy for fifty or sixty

thousand prisoners (or in France for thirty or forty thousand) are

too expensive to admit of the observance of these articles of the

penal code--which nevertheless have cost so many academic

discussions as to the best penitentiary system: ``Auburn,''

``Philadelphian,'' ``Irish,'' or ``progressive.'' In the

organisation of justice, on the other hand, every legal regulation

has its immediate application, and therefore reforms of procedure

produce immediate and visible results.

It may be added that, if the slight deterrent influence which it

is possible for punishment to exercise depends, with its

adaptation to various types of criminals, on the certitude and

promptitude of its application, the others depend precisely and

solely on the organisation of the police, and of penal procedure.

Passing over special and technical reforms which even the

classical experts in crime demand in the systems of procedure, and

often rather on behalf of the criminals than on behalf of society,

we may connect the positive innovations in judicial procedure with

these two general principles:--(1) the equal recognition of the

rights and guarantees of the prisoner to be tried and of the

society which tries him; and (2) the legal sentence, whereof the

object is not to define the indeterminable moral culpability of

the prisoner, nor the impersonal applicability of an article in

the penal code to the crime under consideration; but the

application of the law which is most appropriate to the

perpetrator of the crime, according to his more or less anti-

social characteristics, both physiological and psychological.

From Beccaria onward, penal law developed by reaction against the

excessive and arbitrary severity of the Middle Ages--a reaction

which led to a progressive decrease of punishments. Similarly

official penal procedure in the nineteenth century has been, and

continues to be, a reaction against the medi<ae>val abuses of the

inquisitorial system, in the sense of a progressive increase of

individual guarantees against the domination of society.

As we considered it necessary in the interests of social self-

defence, in the case of criminal law, to combat the individualist

excesses of the classical school, so in regard to penal procedure,

whilst admitting the irrevocable guarantees of individual liberty,

secured under the old system, we think it necessary to restore the

equilibrium between individual and social rights, which has been

disturbed by the many exaggerations of the classical

theories, as we will now proceed to show by a few examples.

The presumption of innocence, and therewith the more general rule,

``in dubio pro reo,'' is certainly based on an actual truth, and

is doubtless obligatory during the progress of the trial.

Undetected criminals are fortunately a very small minority as

compared with honest people; and we must consequently regard every

man who is placed on his trial as innocent until the contrary has

been proved.

But when proof to the contrary is evident, as, for instance, in

the case of a flagrant crime, or of confession confirmed by other

elements in the trial, it seems fit that the presumption should

cease in view of absolute fact; and especially when we have to do

with habitual criminals.

Even the criminals of this class whom I have questioned recognise

a presumption of the opposite kind. ``They have convicted me,''

said an habitual thief, ``because they knew I might have done it,

without any proof; and they were in the right. You will never be

convicted, because you never stole; and if we happen to be

innocent once in a way, that must be set against the other times

when we are not discovered.'' And the ironical smile of several

of these prisoners, condemned on circumstantial evidence, reminded

me of a provision which was once proposed in the Italian penal

code, under which a person surprised in the attempt to commit a

crime, if it was not known what precise form his crime would have

taken, was to be found guilty of a less serious offence. This

might be good for an occasional criminal, or a criminal of

passion, but would be absurd and dangerous for habitual criminals

and old offenders.

The exaggerations of the presumption ``in dubio pro reo'' are due

to a sort of mummification and degeneracy of the legal maxims,

whereby propositions based upon observation and generalisation

from existing facts continue in force and are mechanically applied

after the facts have changed or ceased to exist.

What reason can there be for extending provisional freedom,

pending an appeal, to one who has already been found guilty and

liable to punishment for a crime or offence, under sentence of a

court of first instance? To presume the innocence of every one

during the first trial is reasonable; but to persist in a

presumption which has been destroyed by facts, after a first

condemnation, would be incomprehensible if it were not a

manifestly exaggerated outcome of classical and individualist

theories, which can only see a ``victim of authority'' in every

accused person, and in every condemned person also.

Another point is that of acquittal in case of an equality of

votes, especially where born and habitual criminals are concerned.

I think it would be much more reasonable to restore the verdict of

``not proven,'' which the Romans admitted under the form of ``non

liquet,'' as an alternative to ``absolvo'' and ``condemno,'' and

which may be delivered by juries in Scotland. Every one who has

been put on his trial is entitled to have his innocence declared,

it it has been actually proved. But if the proofs remain

incomplete, his only right is not to be condemned, since

his culpability has not been proved. But it is not the duty of

society to declare him absolutely innocent, when suspicious

circumstances remain. In this case the only logical and just

verdict is one of ``not proven.'' Such a verdict would obliterate

the shadow of doubt which rests on persons who have been

acquitted, by reason of the identical verdicts in cases of proved

innocence and inadequacy of proof, and on the other hand it would

avoid the tendency to compromise, under which judges and juries,

in place of acquitting when the proof is insufficient, sometimes

prefer to convict, but make the punishment lighter.

Another case of exaggeration in the presumption of innocence is

afforded by the regulations as to contradictory or irregular

verdicts, which may be corrected only when there has been a

conviction; whilst if the error has led to the acquittal of an

accused person, it cannot be put right. The influence of the

individualist and classical school is here manifest, for, as M.

Majno says, ``the justice of sentences rests as much on just

condemnations as upon just acquittals.'' If the individual has a

right to claim that he shall not be condemned through the mistake

or ignorance of his judges, society also has the right to demand

that those whose acquittal is equally the result of mistake or

ignorance shall not be allowed to go free.

On the same ground of equilibrium between the rights of the

individual and the rights of society, which the positive school

aims at restoring, something must be said as to the regulation by

which, if the appeal is brought by a condemned person, the

punishment cannot be increased. One classical expert in an

official position would not even give the right to appeal at all.

Now if appeal is allowed for the purpose of correcting possible

mistakes on the part of the original judges, why must we allow

this correction in mitigation, and not in increase of punishment?

And to this practical assurance of the condemned person that he

has nothing to fear from a second trial, which seems to have been

given to him for the sole purpose of encouraging him to abuse his

power, since appeals are too often a mere dilatory pretext, there

is a pendant in the right of the public prosecutor to demand a re-

hearing, but only ``in the interest of the law, and without

prejudice to the person acquitted.''

A last instance of the same kind of protective regulation for the

protection of evil-doers is to be found in the new trials which

are permitted only in cases where there has been a condemnation,

and that on arbitrary and superficial grounds. Most of the

classical commentators on procedure do not dream of the

possibility of revision in the case of acquittals, and yet, as

Majno justly says, ``even if he has profited by false witness,

forged documents, intimidation or corruption of a judge, or any

other offence, the acquitted person calmly enjoys his boast, and

can even plume himself on his own share in the business without

fear of being put on his trial again.'' The Austrian and German

codes of procedure admit revision in cases of acquittal; and the

positive rule in this connection ought to be that a case should be

re-heard when the sentence of condemnation or acquittal is

evidently erroneous.

From the same principle of equality between the guarantees of the

individual criminal and of honest society we infer the necessity

of greater strictness in the idemnification of the victims of

crime. For the platonic damages now added to all sorts of

sentences, but nearly always ineffectual, we believe that a strict

obligation ought to be substituted, the operation of which should

be superintended by the State, in the same way as the other

consequence of the crime, which is called the punishment. I will

return to this when I trace the outline of the positive system of

social defence against criminals.

The positive school, precisely because it aims at an equilibrium

between individual and social rights, is not content with taking

the part of society against the individual. It also takes the

part of the individual against society.

In the first place, the very reforms which we propose for the

indemnification of the victims of crime, regarded as a social

function, as well as the operation of the punishment, have an

individualist character. The individualism of the classical

school was not even complete as a matter of fact; for the

guarantees which it proposed took account of the individual

criminal only, and did not touch his victims, who are also

individuals, and far more worthy of sympathy and protection.

But, beyond this, we may point to three reforms as an instance of

the positive and reasonable guarantees of the individual against

the abuse or the defects of social authority. Of these

reforms two have been put forward by the classical school also,

but, like criminal lunatic asylums, alternatives for short terms

of imprisonment, and so on, they have generally remained

inoperative, for they are not in harmony with the bulk of

traditional theory, and only in a positive system have they any

organic and efficacious connection with the data of criminal

sociology. I refer to the exercise of popular opinion, the

correction of judicial mistakes, and the transfer of sundry

punishable offences to the category of civil contraventions.

The institution of a Ministry of Justice corresponds to the

demands of general sociology, which exacts division of labour even

in collective organisms, and to those of criminal sociology, which

requires a special and distinct organ for the social function of

defence against crime. Indeed it has become indispensable as a

necessary judicial organ, even in nations like England which have

not yet formally established it. So that, far from confounding

the Public Prosecutor with the judicial body, we see the necessity

of giving to this office a more elevated character and a distinct

personality, with ampler guarantees of independence of the

executive power.

Nevertheless the action of the Ministry of Justice, as now

commonly organised, may be inadequate for the protection of the

victims of crime, either indirectly through the insufficient

number of its functionaries, or directly, through the functional

defect insisted on by M. Gneist, ``party spirit or prejudice in

favour of the governing powers.'' The latter, indeed,

notwithstanding M. Glaser's objection that government

pressure is impossible, have no need to give special instructions,

of a more or less compromising character, in order to exercise a

special influence in any particular case. There is no necessity

for anything beyond the conservative spirit natural to every

institution of the State, or the principle of authority which is a

special form of it, apart from the less respectable motives of

interested subservience to such as are in office and dispense

promotion.

Hence it will be useful, in initiating criminal proceedings, to

add to the action of a Public Prosecutor (but not to substitute

for him) the action of private persons.

Criminal proceedings by citizens may take two forms, according as

they are put in operation only by the injured person or by any

individual.

The first mode, already allowed in every civilised nation, needs

amendment in various ways, especially in regard to the

subordination of the penal action to the plaint of the injured

person, which ought to be restrained, and even abolished. In

fact, whereas this right has hitherto been regulated by law only

in view of the legal and material gravity of the offence, it

should in future be made to depend on the perversity of the

offender; for society has a much greater interest in defending

itself against the author of a slight offence if he is a born

criminal or a criminal lunatic, than in defending itself against

the author of a more serious crime, if he is an occasional

criminal or a criminal of passion. And the necessity of bringing

a private action in regard to certain offences is only a

source of abuses, and of demoralising bargains between offenders

and injured persons.

On the other hand, this prosecution by a citizen who has been

injured by a crime or an offence ought to have more efficacious

guarantees, either for the exercise of the rights of the injured

person, or against the possible neglect or abuse of the Public

Prosecutor. If, indeed, he is obliged to take up every charge and

action, he is also (in Italy and France, but not in Austria or

Germany, for instance) the only authority as to penal actions, and

consequently as to penal judgments.

In Italy, out of 264,038 cases which came before the Public

Prosecutor in 1880, six per cent., or 16,058, were ``entered on

the records,'' or, in other words, they were not followed up; and

in 1889, out of a total of 271,279, the number of unprosecuted

cases was 27,086, or ten per cent. That is, the number had almost

doubled in ten years.

In France the annual average of plaints, charges, and trials with

which the Public Prosecutor was concerned stood at 114,181 in the

years 1831-5; at 371,910 in 1876-80; and at 459,319 in 1887. And

the cases not proceeded with were 34,643, or thirty per cent., in

1831-5; 181,511, or forty-eight per cent., in 1876-80; and

239,061, or fifty-two per cent., in 1887. That is to say, their

actual and relative numbers mere nearly doubled in fifty years.

Is it possible that in ten, or even in fifty years, the moral

conditions of a nation, and its inclination to bring criminal

charges, should be so modified that the number of cases devoid of

foundation should have been almost doubled? It is certain

that in different nations and different provinces there are

varying degrees of readiness to bring charges against lawbreakers

rather than to take personal vengeance. But in one and the same

nation this vindictive spirit and this readiness to bring charges

cannot vary so greatly and rapidly, especially within ten years,

as in Italy; for the persistence of popular sentiment is a well-

known fact. It is rather in the disposition of the functionaries

of the Ministry of Justice, which is far more variable, that we

must look for an explanation of this fact, which is also accounted

for by the tendency to diminish the statistical records of crime.

Now, why must the citizen who lodges a complaint of what he

considers a crime or offence submit to the decision of the Public

Prosecutor, who has allowed his action to drop? This

consideration has led to the subsidiary penal action, already

allowed in Germany and Austria, and introduced in the draft codes

of procedure in Hungary, Belgium, and France, which is a genuine

guarantee of the individual as against the social authority. We

must not, however, deceive ourselves as to the efficacy or

frequency of its operation, especially in the Latin nations, which

have none too much individual initiative.

The second form of private prosecution is that of the ``popular

punitive action,'' which existed in the Roman penal law--which, it

may be said in passing, is not so insignificant as the classical

school has supposed. The statement of M. Carrara, too often

repeated, that ``The Romans, who were giants in civil law, are

pigmies in penal law,'' is not in my opinion correct. It

is true that the Roman penal law was not organised in a

philosophical system; but it exhibits throughout the wonderfully

practical judgment of the Roman jurisconsults; and indeed one

cannot see why they should have lost this sense when dealing with

crimes and punishments. On the other hand, I am inclined to think

that the importance of the Roman civil law has been exaggerated,

and that the spirit of the _corpus juris_ springs from social and

economic conditions so different from our own that we can no

longer feel bound to submit to its tyranny. The penal law of the

Romans, however, contains several maxims based on unquestionable

common sense, which deserve to be rescued from the oblivion to

which they have been condemned by the dogmatism of the classical

school. Examples of these are the popular punitive action; the

distinction between _dolus bonus_ and _dolus malus_, which belongs

to the theory of motives; the stress laid upon intentions rather

than upon their actual outcome; the law of _exceptio veritatis_ in

cases of slander, which under the pharisaism of the classical

theory serves only to give immunity to knaves; the penalty of

twofold or threefold restitution for theft, in place of a few days

or weeks in prison; the condemnation of the most hardened

criminals to the mines, instead of providing them with cells, as

comfortable as they are ineffectual--apart from the consideration

that the firedamp in mines and the unhealthiness of penal

settlements would be less mischievous if their victims were the

most dangerous criminals rather than honest miners and husbandmen.

To return to the popular penal action, it is so commonly

advocated, even by the classical school, that it is necessary to

say another word on the subject.

Gneist, from his special point of view, proposed that this action

should be introduced into penal procedure, as against electoral

and press offences, offences against the law of public meetings

and associations, and the abuse of public authority. But I

consider that this action would be a necessary guarantee, in the

case of all crimes and offences, for a reasonable and definite

adjustment of the rights of the individual and of society.

Another reform, tending to a more effective guarantee of

individual rights, is the revision of judicial errors in the

interests of all who are unjustly condemned or prosecuted. Such a

reform has been advocated also by several members of the classical

school; but it seemed only too likely to remain with them a mere

benevolent expression of opinion; for it can only be carried into

effect by curtailing imprisonment, and by a more frequent and

stringent infliction of fines, as advocated by the positive

school.

Sanctioned in some special cases, as an exceptional measure--as,

for instance, in the last century by the Parliament of Toulouse,

and in our age by the English Parliament--compensation for

judicial errors was rendered necessary in France at the end of the

eighteenth century, after a series of unjust condemnations, even

death sentences, which led Voltaire and Beccaria to demand the

abolition of capital punishment. In 1781 the Society of Art and

Literature at Ch<a^>lonssur-Marne offered a prize for an essay on

the subject, and awarded it to Brissot de Warville, for his work,

``Le Sang Innocent Veng<e'>.'' In the records of the

<E'>tats G<e'>n<e'>raux there were many votes in favour of this

reform, which Louis XVI. caused to be introduced on May 8, 1788.

In 1790 Duport brought in a measure in the Constituent Assembly;

but it was rejected after a short discussion in February, 1791,

during which the same practical objections were urged as have been

repeated up to the present time. Nevertheless, the Convention

decreed special indemnities, as, for instance. a thousand francs

in 1793 for one Busset, ``for arbitrary imprisonment and

prosecution.'' In 1823 the above-named Society at Ch<a^>lonssur-

Marne proposed the same subject for an essay; and it has been the

object of sundry proposals, all rejected, as in 1867 during the

discussion on criminal appeals, on amendments moved by Jules

Favre, Richard, and Ollivier; and again in 1883 by D<e'>put<e'>

Pieyre, and in 1890 by D<e'>put<e'> Reinach.

This reform has been advocated by Necker, amongst other writers,

in his memoir on ``Financial Administration in France,'' and by

Pastoret, Voltaire, Bentham, Merlin, Legraverend, H<e'>lie,

Tissot, and more comprehensively by Marsangy in his ``Reform of

the Criminal Law'' (1864). Marsangy advocated many other

practical reforms which have since been adopted, in substitution

for the objectionable short terms of imprisonment. More recently

the subject has been treated in France by the magistrates Bernard,

Pascaud, Nicolas, Giacobbi, and by the Attorney-Generals Molines,

Jourdan, Houssard, Dupry, Bujard, in their inaugural addresses.

In Italy there was a notable precedent for this reform in

the Treasury of Fines, established for Tuscany in 1786, and for

the kingdom of the Two Sicilies in the penal code of 1819, for the

purpose of creating a fund for compensation in cases of judicial

error. In 1886 Deputy Pavesi brought in a measure which was not

discussed; and this indemnification, which had already been

proposed in 1873 by De Falco, keeper of the seals, in his draft of

an Italian penal code, was not included in subsequent Bills,

mainly on account of the financial difficulties. Amongst writers

on criminology, it was advocated in Italy by Carrara, Pessina, and

Brusa; in Germany by Geyer and Schwarze; in Belgium by Prins and

others, and more recently by M. Garofalo, in his report to the

third National Congress on Law, at Florence, in September, 1891.

Amongst existing laws, indemnification for judicial errors,

whether limited to cases in which the innocence of condemned

persons can be proved, or extended to persons wrongfully

prosecuted, is included in the penal codes of Hungary and Mexico,

and by special laws in Portugal (1884), Sweden (1886), Denmark

(1888), and especially in Switzerland, in the cantons of Fribourg,

Vaud, Neuch<a^>tel, Geneva, B<a^>le, and Berne.

The legal principle that the State ought to indemnify material and

moral injury inflicted by its functionaries, through malice or

negligence, on a citizen who has done nothing to subject himself

to prosecution or condemnation, cannot be seriously contested.

But the whole difficulty is reduced to deciding in what cases the

right to indemnification ought to be recognised, and then

to providing a fund out of which the State can discharge this

duty.

For the latter purpose it would be necessary to include an

adequate sum in the Budget. This was done in Bavaria, in 1888, by

setting apart 5,000 marks annually; and the first who profited by

this provision received a pension of 300 marks per annum, after

being rendered incapable of work by seven years' imprisonment for

a crime which he had not committed. But if the policy of

retrenchment imposed on the European States by their insane

military expenditure and their chronic wars prevents the carrying

out of this proposal, there is the Italian precedent of the

Treasury of Fines, which, with the fines inflicted, or which ought

to be inflicted on convicted persons, and the product of prison

labour, would provide the necessary amount for the indemnities

which the State ought to pay to innocent persons who have been

condemned or prosecuted, as well as to the victims of offences.

As for the cases in which a right to indemnification for judicial

errors ought to be acknowledged, it seems to me evident in the

first place that we must include those of convicted persons found

to be innocent on a revision of the sentence. Amongst persons

wrongfully prosecuted, I think an indemnity is due to those who

have been acquitted because their action was neither a crime nor

an offence, or because they had no part in the action (whence also

follows the necessity of verdicts of Not Proven, so as to

distinguish cases of acquittal on the ground of proved

innocence)--always provided that the prosecuted persons have not

given a reasonable pretext for their trial by their own

conduct, or their previous relapse, or their habitual criminality.

The third proposition of the positive school in regard to

individual guarantees, which was also advanced by M. Puglia, is

connected with reform of the penal code, and especially with the

more effectual indemnification of the victims of crime. The

object is to prune the long and constantly increasing list of

crimes, offences, and contraventions of all acts which result in

slight injury, committed by occasional offenders, or ``pseudo-

criminals''--that is, by normal persons acting merely with

negligence or imprudence.

In these cases the personal and social injury is not caused

maliciously, and the agent is not dangerous, so that imprisonment

is more than ever inappropriate, unjust, and even dangerous in its

consequences. Deeds of this kind ought to be eliminated from the

penal code, and to be regarded merely as civil offences, as

__*simple__ theft was by the Romans; for a strict indemnification

will be for the authors of these deeds a more effectual and at the

same time a less demoralising and dangerous vindication of the law

than the grotesque condemnation to a few days or weeks in prison.

It will be understood that the classical theory of absolute

and eternal justice cannot concern itself with these trifles,

which, nevertheless, constitute two-thirds of our daily social and

judicial existence; for, according to this theory, there is always

an offence to be visited with a proportionate punishment, just as

with a murder, or a highway robbery, or a slanderous word.

But for the positive school, which realises the actual and

practical conditions of social and punitive justice, there is on

the other hand an evident need of relieving the codes, tribunals,

and prisons from these microbes of the criminal world, by

excluding all punishments by imprisonment for what Venturi and

Turati happily describe as the atomic particles of crime, and by

relaxing in some degree that monstrous network of prohibitions and

punishments which is so inflexible for petty transgressors and

offenders, but so elastic for serious evil-doers.

II.

The reforms which we propose in punitive law are based on the

fundamental principle already established on the data of

anthropology and criminal statistics.

If the ethical idea of punishment as a retribution for crime

be excluded from the repressive function of society, and if we

regard this function simply as a defensive power acting through

law, penal justice can no longer be squared with a minute

computation of the moral responsibility or culpability of the

criminal. It can have no other end than to prove, first, that the

person under trial is the author of the crime, and, then, to which

type of criminals he belongs, and, as a consequence, what degree

of anti-social depravity and re-adaptability is indicated by his

physical and mental qualities.

The first and fundamental inquiry in every criminal trial

will always be the verification of the crime and the

identification of the criminal.

But when the connection of the accused and the crime is once

established, either the accused produces evidence of his honesty,

or of the uprightness of his motives--the only case in which his

acquittal can be demanded or taken into consideration--or else it

is proved that his motives were anti-social and unlawful, and then

there is no place for those grotesque and often insincere contests

between the prosecution and the defence to prevent or to secure an

acquittal, which will be impossible whatever may be the

psychological conditions of the criminal. The one and only

possible issue between the prosecution and the defence will be to

determine, by the character--of the accused and of his action, to

what anthropological class he belongs, whether he is a born

criminal, or mad, or an habitual or occasional criminal, or a

criminal of passion.

In this case we shall have no more of those combats of craft,

manipulations, declamations, and legal devices, which make every

criminal trial a game of chance, destroying public confidence in

the administration of justice, a sort of spider's web which

catches flies and lets the wasps escape.

The crime will always be the object of punitive law, even under

the positive system of procedure; but, instead of being the

exclusive concern of the judge it will only be the ground of

procedure, and one symptom amongst others of the depravation and

re-adaptability of the criminal, who will himself be the true and

living subject of the trial. As it is, the whole trial is

developed from the material fact; and the whole concern of the

judge is to give it a legal definition, so that the criminal is

always in the background, regarded merely as the ultimate billet

for a legal decision, in accordance with some particular article

in the penal code--except that the actual observance of this

article is at the mercy of a thousand accidents of which the judge

knows nothing, and which are all foreign to the crime, and to the

criminal.

If we rid ourselves of the assumption that we can measure the

moral culpability of the accused, the whole process of a criminal

trial consists in the assemblage of facts, the discussion, and the

decision upon the evidence. For the classical school, on the

other hand, such a trial has been regarded as a succession of

guarantees for the individual against society, and, by a sort of

reaction against the methods of legal proof, has been made to turn

upon the private conviction, not to say the intuition, of the

judge and counsel.

A criminal trial ought to retrace the path of the crime itself,

passing backward from the criminal action (a violation of the

law), in order to discover the criminal, and, in the psychological

domain, to establish the determining motives and the

anthropological type. Hence arises the necessity for the positive

school of reconsidering the testimony in a criminal case, so as to

give it its full importance, and to reinforce it with the data and

inferences not only of ordinary psychology, as the classical

school has always done (Pagano for instance, and Bentham,

Mittermaier, Ellero, and others), but also, and above all,

with the data and inferences of criminal anthropology and

psychology.

In the evolution of the theory of evidence we may distinguish four

characteristic stages, as M. Tarde observed--the religious stage,

with its ordeals and combats; the legal stage, accompanied by

torture; the political stage, with private conviction and the

jury; and the scientific stage, with expert knowledge of

experimental results, systematically collected and studied, which

is the new task of positive procedure.

We must glance at each of the three elements of the criminal

trial: collection of evidence (police and preliminary inquiry);

discussion of evidence (prosecution and defence), and decision

upon evidence (judges and juries).

It is evident in the first place, as I remarked in the first

edition of this work, and as Righini, Garofalo, Lombroso, Alongi,

and Rossi have confirmed, that a study of the anthropological

factors of crime provides the guardians and administrators of the

law with new and more certain methods in the detection of the

guilty. Tattooing, anthropometry, physiognomy, physical and

mental conditions, records of sensibility, reflex activity, vaso-

motor reactions, the range of sight, the data of criminal

statistics, facilitate and complete the amassing of evidence,

personal identification, and hints as to the capacity to commit

any particular crime; and they will frequently suffice to give

police agents and examining magistrates a scientific guidance in

their inquiries, which now depend entirely on their individual

acuteness and mental sagacity.

And when we remember the enormous number of crimes and offences

which are not punished, for lack or inadequacy of evidence, and

the frequency of trials which are based solely on circumstantial

hints, it is easy to see the practical utility of the primary

connection between criminal sociology and penal procedure.

The practical application of anthropometry to the identification

of criminals, and to the question of recidivism, which was begun

in Paris by M. Bertillon, and subsequently adopted by almost all

the states of Europe and America, is too familiar to need

description. It will be sufficient to recall the modifications of

Bertillon's system by Anfosso, with the actual collection of

anthropometric data, and their inclusion in the ordinary records

of justice.

Thus the sphygmographic data on the circulation of the blood,

which reveal the inner emotions, in spite of an outward appearance

of calm or indifference, have already served to show that a person

accused of theft was not guilty of it, but that he was on the

contrary guilty of another theft, of which he had not been so much

as suspected. On another occasion they established the innocence

of a man condemned to death. We shall have more speaking and

frequent illustrations when these inquiries have been placed

regularly at the service of criminal justice.

The sphygmograph may also be useful in the diagnosis of simulated

disease, after the example set M. Voisin in the case of a sham

epileptic in Paris, ``whose sphygmographic lines have no

resemblance to those of true epileptics before and after a fit,

and <168>only resemble those produced by normal persons after a

violent gesticulation.''

As for the possible utilisation of hypnotism, we must be cautious

before we draw any legal conclusions from it; but it cannot be

questioned that this is a valuable source of scientific aid in the

systematic collection of criminal evidence.

But, for the present, the most certain and profitable aids in the

collection of evidence are those afforded by the organic and

psychical characteristics of criminals. In my study on homicide I

reckoned up many psychological and psycho-pathological symptoms

which characterise the murderer, the homicidal madman, and the

homicide through passion. And in my professional practice I have

often found by experience that there is a great suggestive

efficacy in these psychological symptoms in regard to the conduct

of a criminal, before, during, and after a crime; and it is

important to bring this knowledge scientifically before detectives

and judges.

These data are not applicable to accused persons exclusively.

When we remember the enormous importance of oral evidence in the

chain of criminal proof, and the rough traditional empiricism of

the criteria of credibility, which are daily applied in all trials

to all kinds of witnesses, by men who regard them, like the

prisoners, as an average abstract type--excluding only the

definite cases of inability to give evidence, which are defined

beforehand with as much method as the cases of irresponsibility--

the necessity of calling in the aid of scientific psychology and

psycho-pathology is manifest.

For instance, not to dwell on the absurd violation of these

traditional criteria of credibility, when police officers are

admitted as witnesses (often the only witnesses) of resistance to

authority or violence, wherein they are doubly interested parties,

how often in our courts do we give a thought to the casual

imaginations or credulity of children, women, weak-nerved or

hysterical persons, and so on? Counsel for defence or prosecution

who desired to know if any particular witness is or is not

hysterical would bring a smile to the face of the judge, very

learned, no doubt, in Roman law or legal precedents, but certainly

ignorant in physiology, psychology, and psycho-pathology. Yet the

tendency to slander in hysterical cases, which M. Ceneri urged so

eloquently in a celebrated trial or the tendency to untruth in

children, which M. Motet has ably illustrated, are but manifest

and simple examples of this applicability of normal, criminal, and

pathological psychology to the credibility of witnesses. And,

under its influence, how much of the clear atmosphere of humanity

will stimulate our courts of justice, which are still too much

isolated from the world and from human life, where, nevertheless,

prisoners and witnesses come, and too often come again, living

phantoms whom the judges know not, and only see confusedly through

the thick mist of legal maxims, and articles of the code, and

criminal procedure.

Apart from these examples, which prove the importance of what M.

Sarraute justly called ``judicial applications of criminal

sociology,'' the fundamental reform needed in the scientific

preparation of criminal evidence is the creation of

magisterial experts in every court of preliminary inquiry. In a

question of forgery, poisoning, or abortion, the judge has

recourse to experts in handwriting, chemistry, or obstetrics; but

beyond these technical, special, and less frequent cases, in every

criminal trial the basis of inquiry is or ought to be formed by

the data of criminal biology, psychology, and psycho-pathology.

So that, over and above the knowledge of these sciences which is

necessary to judges, magistrates, and police officers, it is most

important that an expert, or several experts in criminal

anthropology should be attached to every court of criminal

inquiry.

This would provide us with an anthropological classification,

certain and speedy, of every convicted person, as well as a legal

classification of the material fact, and we should avoid the

scandal of what are known as experts for the prosecution and

experts for the defence. There should be but one finding of

experts, either by agreement between them or by a scientific

reference to arbitration, as in the German, Austrian, and Russian

system; and over this finding the judges and the litigants should

have no other power than to call for explanations from the chief

of the experts.

In this way we should further avoid the scandal of judges entirely

ignorant of the elementary ideas of criminal biology, psychology,

and psycho-pathology, like the president of an assize court whom I

heard telling a jury that he was unable to say why an expert

``wanted to examine the feet of a prisoner in order to come to a

decision about his head.'' This president, who was an

excellent magistrate and a learned jurist was wholly unacquainted

with the elements of the theory of degeneracy, like one of his

colleagues whom I heard saying, when the expert spoke of the

abnormal shape of the ears of a prisoner (in accord with the

inquiries of Morel and Lombroso), ``That depends on how the hat is

worn.''

For in consequence of the assumption, made by Kant amongst others,

that questions of mental disease belong to the philosopher rather

than to the physician, and of the absurd and shallow idea which

superficial persons entertain of those who are insane, picturing

them as constantly raving, the judge or juryman who pins his faith

to an expert in handwriting thinks himself above the necessity of

taking the opinion of an expert in insanity.

It must be recognised, however, that this foolish assumption is

partly due to a reasonable anxiety for the public safety, under

the sway of the classical theories, which allow the acquittal and

discharge of criminals who are found to be of unsound mind. It

will eventually disappear, either by the wider diffusion of

elementary ideas of psycho-pathology or by the application of

positive theories, which are far from carrying the proved insanity

of a prisoner to the dangerous and absurd conclusion of his

acquittal.

After the first stage of the collection of evidence, during which

we can admit the legal representation of the accused, especially

for the sake of eliciting both sides of the question, without,

however, going so far as the individual exaggerations of complete

publicity for the preliminary inquiry, we come to the second

stage of procedure, that of the public discussion of the

evidence.

The principals in this discussion represent the prosecution

(public or private) and the defence; and for these, as I cannot go

into great detail, I will only mention one necessary reform. That

is the institution of a sort of public defence, by a legal officer

such as used to be found in certain of the Italian provinces,

under the title of ``advocate of the poor,'' who ought to be on a

par with the public prosecutor, and to be substituted for the

present institution of the official defence, which is a complete

failure.

As for the actual discussion of evidence, when we have established

the scientific rules of evidence, based upon expert acquaintance

with criminal anthropology, and when we have eliminated all verbal

contention over the precise measure of moral responsibility in the

prisoner, the whole debate will be a criticism of the personal and

material indications, of the determining motives, and the

anthropological category to which the accused belongs, and of the

consequent form of social defence best adapted to his physical and

psychical character.

The practical conclusion of the criminal trial is arrived at in

the third stage, that of the decision on the evidence.

So far as we are concerned, the criminal adjudication has the

simple quality of a scientific inquiry, subjective and objective,

in regard to the accused as a possible criminal, and in relation

to the deed of which he is alleged to be the author. We naturally

therefore require in the judge certain scientific

knowledge, and not merely the intuition of common sense.

But as the consultation of the jury, by reason of its inseparable

political aspect, must take place in private, we can only insist

on the fundamental reform of the judicial organisation, which

alone can realise the scientific principle of criminal

adjudication. It was Garofalo who, in the earlier days of the

positive school, urged that civil and criminal judges ought to be

wholly distinct, and that the latter ought to be versed in

anthropology, statistics, and criminal sociology, rather than in

Roman law, legal history, and the like, which throw no light on

the judgment of the criminal.

Learned jurists, proficient in the civil law, are least fit to

make a criminal judge, accustomed as they are by their studies to

abstractions of humanity, looking solely to the juridical

bearings, inasmuch as civil law is mostly ignorant of all that

concerns the physical and moral nature of individuals. The

demoralisation or uprightness of a creditor, for instance, has no

influence for or against the validity of his credit.

The jurist, therefore, in a matter of criminal adjudication,

entirely loses sight of the personal conditions of the accused,

and the social conditions of the community, and confines his

attention to the deed, and to the maxims of a so-called

retributive justice. They who are called upon to try criminals

ought to possess the ideas necessary to the natural study of a

criminal man, and should therefore constitute an order of

magistrates wholly distinct from that of civil judges.

The practical means of securing this fundamental reform of the

judicial bench ought to begin with the organisation of the

university, for in the courses of the faculty of law it will be

necessary to introduce a more vigorous and modern stream of social

and anthropological studies, which must also eventually put new

life into the ancient maxims of the civil law.

In the second place, law students at the university ought to be

admitted to what Ellero called a science of clinical criminology,

that is to interviews with and systematic observations of

prisoners. The first Congress of Criminal Anthropology approved

the proposal of M. Tarde, upon the following motion of Moleschot-

Ferri:--``The Congress, in agreement with the scientific tendency

of criminal anthropology, is of opinion that prison authorities,

whilst taking necessary precautions for internal discipline, and

for the individual rights of condemned prisoners, should admit to

the clinical study of criminals all professors and students of

penal law and legal medicine, under the direction and

responsibility of their own professors, and if possible in the

character of societies for the aid of actual and discharged

prisoners.''

Lastly, a special school should be founded for policemen and

prison warders, with the object of securing detectives

distinguished not only for their personal ability, but also for

their knowledge of criminal biology and psychology.

To these reforms, which guarantee the scientific capacity of the

criminal judge, we must add reforms which would secure his

complete independence of the executive authority, which is

now the only authority responsible for the advancement and

allocation of judges. But this independence would not be exempt

from every kind of control, such as public opinion, and

disciplinary authority to some extent distinct from the

_personnel_ of the bench; for otherwise the judicial authority

would soon become another form of insupportable tyranny.

The most effectual mode of securing the independence of the judges

is to improve their position in life. For admitting that a fixed

stipend, payable every month, makes a man content with a somewhat

lower figure, still it is certain that in these days, with a few

honourable exceptions, the selection of judges is not

satisfactory, because low salaries only attract such as could not

earn more by the practice of their profession.

The personal character of the bench vitally affects the quality of

the government as a whole. The most academic and exalted codes

are of little avail if there are not good judges to administer

them; but with good judges it matters little if the codes or

statutes are imperfect.

In criminal law the application of the statute to the particular

case is not, or should not be, a mere question of legal and

abstract logic, as it is in civil law. It involves the adaptation

of an abstract rule, in a psychological sense, to a living and

breathing man; for the criminal judge cannot separate himself from

the environment and social life, so as to become a more or less

mechanical _lex loquens_. The living and human tests of every

criminal sentence reside in the conditions of the act, the

author, and reacting society, far more than in the written law.

Herein we have an opportunity of solving the old question of the

authority of the judge, wherein we have gone from one excess to

another, from the unbounded authority of the Middle Ages to the

Baconian aphorism respecting the law and the judge, according to

which the law is excellent when it leaves least to the judge, and

the judge is excellent when he leaves himself the least

independent judgment.

If the function of the criminal judge were always to be, as it is

now, an illusory and quantitative inquiry into the moral

culpability of the accused, with the equally quantitative and

Byzantine rules on attempt, complicity, competing crimes, and so

forth--that is to say, if the law were to be applied to the crime

and not to the criminal, then it is necessary that the authority

of the judge should be restrained within the numerical barriers of

articles of the code, of so many years, months, and days of

imprisonment to be dosed out, just as the Chinese law decides with

much exactitude the length and diameter of the bamboo rods, which

in the penal system of the Celestial Empire have the same

prominence as penitentiary cells have with us.

But if a criminal trial ought to be, on the other hand, a physio-

psychological examination of the accused, the crime being

relegated to the second line, as far as punishment is concerned,

the criminal being kept in the front, then it is clear that the

penal code should be limited to a few general rules on the modes

of defence and social sanction, and on the constituent

elements of every crime and offence, whilst the judge

should have greater liberty, controlled by the scientific and

positive data of the trial, so that he may judge the man before

him with a knowledge of humanity.

The unfettered authority of the judge is inadmissible in regard to

the forms of procedure, which for the prosecuted citizen are an

actual guarantee against judicial errors and surprises, but which

should be carefully distinguished from that hollow and

superstitious formalism which generates the most grotesque

inanities, such as an error of a word in the oath taken by

witnesses or experts, or a blot of ink on the signature of a

clerk.

III.

Scientific knowledge of criminals and of crime, not only as the

deed which preceded the trial, but also as a natural and social

phenomenon--this, then, is the fundamental principle of every

reform in the judicial order; and this, too, is a condemnation of

the jury. Whilst Brusa, one of the most doctrinaire of the

Italian classical school, foretold a steady decline of the

``technical element'' in the magistracy, and consequently a

persistent intervention of the popular influence in the

administration of justice, the positive school, on the other hand,

has always predicted the inevitable decline of the jury in the

trial of crimes and ordinary offences.[16]

[16] It is interesting to observe that Carrara, in spite of

his public advocacy of the jury, wrote in a private letter in 1870

(published on the unveiling of his monument at Lucca):--``I

expressed my opinion as to the jury in 1841, in an article

published in the _Annals of Tuscan Jurisprudence_--namely, that

criminal justice was becoming a lottery. Justice is being

deprived of her scales and provided with a dice-box. This seems

to me to be the capital defect of the jury. All other defects

might be eliminated by a good law, but this one is inseparable

from the jury. . . . Even amongst magistrates we may find the

harsh and the clement; but in the main they judge according to

legal argument, and one can always more or less foresee the issue

of a trial{.??} But with juries all forecast is rash and

deceptive. They decide by sentiment; and what is there more vague

and fickle than sentiment{. .??} . . With juries, craft is more

serviceable to an advocate than knowledge. I once had to defend a

husband who had killed his wife's lover in a caf<e'>. I

challenged the bachelors on the jury, and accepted the married

men. After that, I was sure of success, and I succeeded. . . .

This is the real essential vice of the jury, which no legislative

measure could overcome.''

Theodore Jouffroy, after listening at the University of Pisa to a

lecture by Carmignani against the jury, said, ``You are defending

logic, but slaying liberty.''

Apart from the question whether liberty is possible without logic,

it is nevertheless a fact that there is always a prominent

political character in the jury. This accounts for the more or

less declamatory defences of this judicial institution, which is

no favourite with the criminal sociologist.

At the end of the eighteenth century, when there was a scientific

and legislative tendency towards the creation of an independent

order of magistrates, the French Revolution, mistrusting the whole

aristocracy and social caste, opposed this tendency, believing

enthusiastically in the omnipotence and omniscience of the people,

and instituted the jury. And whilst in the political order it was

inspired by classical antiquity, in the order of justice it

adopted this institution from England. The jury was not

unknown to the Republic of Athens and Rome, but it was

developed in the Middle Ages by the ``barbarians,'' as an

instrument which helped the people to escape from tyranny in the

administration of the law. It used to be said that the jury made

a reality of popular sovereignty, and substituted the common sense

and good will of the people for the cold dogmatism of the lawyers,

penetrated as they were by class prejudices. From this point of

view the jury was too much in accord with the general tendency of

the ideas of the day not to be greedily adopted. It was another

example of the close connection between philosophic ideas,

political institutions, and the judicial organisation.

The jury, transported to the Continent, in spite of the

improvements recorded by Bergasse in his report to the Constituent

Assembly, on August 14, 1789, was a mere counterfeit of that which

it was, and is, in England. But its political character is still

so attractive that it has many supporters to this day, though the

results of its employment in various countries are not very happy.

Yet, as the jury is a legal institution, we must consider its

advantages and defects, both from the political and from the legal

point of view, and accept the conclusion forced upon us by the

predominance of one or the other.

From the political standpoint, it is unquestionable that the jury

is a concession to popular sovereignty; for it is admitted that

the power of the law not only originates with the people, but is

also directly exercised by them.

The jury may also be a guarantee of civic and political liberties

as against the abuses of government, which are far more easy with

a small number of judges, more or less subordinate to the

government.

Again, the jury may be a means of affirming the sentiment of

equality amongst citizens, each of whom may to-morrow become a

judge of his equals, and of spreading political education, with a

practical knowledge of the law. It is true that, with this

knowledge of the law, juries also learn the details of every kind

of crime, without the equally constant evidence of virtuous

actions; and there is here a danger of moral contagion from crime.

But, from the political point of view, it is certain that the jury

may awaken, with a knowledge of the law, a consciousness of civic

duties, which are too frequently undertaken as a forced and

troublesome burden.

On these political advantages of the jury, however, a few remarks

may be made.

In the first place, the concession to popular sovereignty is

reduced to very small proportions by the limitations of the jury

list, and of the functions of the jury, which legislation in every

country is compelled to impose.

The essential characteristic distinguishing the jury from the

judge is especially marked by the origin of their authority; for

the jury is a judge simply because he is a citizen, whilst the

magistrate is a judge only by popular election or appointment by

the head of the State. So that any one who has entered on his

civil and political rights, and is of the necessary age,

ought, according to the spirit of the institution, to

administer justice on every civil or criminal question, whatever

its importance, and not only in giving the final verdict, but also

in conducting the trial. Yet not only is the ancient trial by

popular assemblies impossible in the great States of our day, but

also faith in the omniscience of the people has not availed to

prevent all kinds of limitations in the principle of the jury.

Thus the political principle of the jury is such that it cannot be

realised without misapprehension, limitation, and depreciation.

In fact, even in England, where the jury can of its own motion

declare in the verdict its opinions, strictures, and suggestions

of reform, as arising out of the trial, it is always subject to

the guidance of the judge, and it is not employed in the less

serious and most numerous cases, on which the whole decision is

left to magistrates, who apparently are not to be trusted to

decide upon crimes of a graver kind.

And as for the other political advantages of the jury, experience

shows us that the jury is often more injurious than serviceable to

liberty.

In the first place, in continental States the jury is but an

institution artificially grafted, by a stroke of the pen, on the

organism of the law, and has no vital connection or common roots

with this and other social organisms, as it has in England. Also

the example of classical antiquity is opposed to the institution

of the jury, which has been imposed upon us by eager imitation and

political symmetry; for if the jury had disappeared amongst

continental nations, this simply means that it did not find in the

ethnic types, the manners and customs, the physical and

social environments of these nations, an adequate supply of

vitality, such as it has retained, for instance through so many

historical changes, amongst the Anglo-Saxons.

And if sometimes the jury can withstand the abuses of government,

still too frequently it does not withstand its own passions, or

the influence of the social class (the _bourgeoisie_ in our own

day), to which nearly all juries belong. It is notorious, in

fact, that the jury is more rigorous in regard to prisoners

accused of crimes against property than in regard to those accused

of crimes against the person, especially crimes instigated by

personal motives such as hate, vengeance, or the like; for every

juryman thinks that he himself might be a victim of the exploits

of a thief, or the attacks of a murderer for the sake of gain;

whereas there is less reason to fear a murder provoked by

vengeance, an outrage, an embezzlement of public money, or the

like. And Macchiavelli said that men would rather have blood

drawn from their veins than money from their pockets.

Besides, the same jury which will resist pressure from the

Government does not resist popular pressure, direct or indirect,

especially in view of the secrecy of their individual votes. No

doubt there are noble exceptions; but society is made up of

average virtues, and only upon them can it count.[17]

[17] In Dublin, for the trial of the murderers of Burke and Lord

Frederick Cavendish, in 1883, the empanelling of the jury was very

difficult, for nobody was willing to expose himself to the

vengeance of the fanatics.

And when it is continually asserted, in the words of

Jouffroy, that the jury is an outpost of liberty, or in those of

Carrara, that it is its necessary complement, we have to remark

that this would be true if the jury were instituted by a despotic

government; but when popular liberties have far more effectual

guarantees in the political organisation of the State, then this

quality of the jury is more apparent than real.

In fine, either the government is despotic, and then juries are

not strong enough to preserve liberty, as in England from the time

of Henry VIII. to that of James II.; or, as Mittermaier said,

``when authority is corrupt, and the judge is cowardly or

terrorised, a jury cannot assist in the defence of liberty.'' Or

else the government is liberal, and then the judges also are

independent, so that there is no need of juries, especially with

the guarantees of their independence which I have already

indicated.

Now history reminds us that the jury is never instituted by

despotic governments. It was refused, for instance, in upper

Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in

Lombardy by Austria in 1849, and in our own day in Russia, for

political crimes, though it is allowed for ordinary crimes.

Thus the jury, as a political and liberal institution, is oddly

destined to be excluded when it would be serviceable, and to be

useless when it is admitted. It reminds us of the destiny of the

National Guard.

But, even in England, the jury is regarded as especially a legal

institution; and the main qualities attributed to it in this

connection are moral judgment and private conviction.

The law, we are told, has always a certain harshness and

insufficiency, for it ought to provide for the future whilst

grounding itself on the past, whereas it cannot foresee all

possible cases. Progress is so rapid and manifold, in modern

society, that penal laws cannot keep pace with it, even though

they are frequently recast--as for instance in Bavaria, which in

one century has had three penal codes, and in France, where an

almost daily accumulation of special laws is piled upon the

original text of the most ancient code in Europe.

The jury, by its moral judgment, corresponding in some degree to

the equity of the ancients, is able to correct the _summum jus_

with verdicts superior to the written law. And, in addition, the

jury always follows its private conviction, the inspiration of

sentiment, the voice of the conscience, pure instinct, in place of

the stern and artificial maxims of the trained lawyer.

I do not deny these qualities of the jury; but I very much suspect

that they are serious and dangerous vices rather than useful

qualities in a legal institution.

In the first place, I believe that the distinction of powers or

social functions, corresponding to the natural law of division of

labour, ought not to be destroyed by the jury. The duty of the

judicial power, before everything else, is to observe and apply

the written law; for if we once admit the possibility that the

judge (popular or trained) has to amend the law, all guarantee of

liberty is lost, and the authority of the individual is unlimited.

As I have said above, we allow the authority of the judge

only when we have actual guarantees of his capacity and

independence, and always within the limits of the general precepts

of the law, and under the control of a superior disciplinary

power.

But the omnipotence of the jury, liberated from all reasonable

regulation, with no directing motives for its verdict, and no

possibility of control, is a two-edged blade, which may sometimes

improve upon the law, or at least usefully indicate to the

legislator the tendencies of public opinion in regard to a

particular crime. But it may also violate the law, and the

liberty of the individual, and then we pay too dear for the slight

advantage which the jury can confer, and which might be replaced

by other manifestations of public opinion. In any case, as

Bentham said, it is better to have our remedy in the law than in

the subversion of the law.

As for private conviction, we willingly admit that no system of

legal proof is acceptable. But it is one thing to substitute for

the legal and artificial assurance of the law the assurance of the

judge who tries the case, and quite another thing to substitute

for conviction founded on argument, and for a critical examination

of the evidence collected during the trial, the blind and simple

promptings of instinct or sentiment.

Even apart from technical notions, which we consider necessary to

the physio-psychological trial of any accused person, social

justice certainly cannot be dispensed through the momentary and

unconsidered impressions of a casual juryman. If a criminal trial

consisted of the simple declaration that a particular

action was good or bad, no doubt the moral consciousness of the

individual would be sufficient; but since it is a question of the

value of evidence and the examination of objective and subjective

facts, moral consciousness does not suffice, and everything should

be submitted to the critical exercise of the intellect.

To the instinctive blindness of the judgment of juries we must add

their irresponsibility.

No doubt if the legislator required from all judges a simple Yes

or No, then perhaps the jury would be as good as the magistrate.

But instead of the unexplained verdict which Carmignani called

``the method of the cadi,'' we are of opinion that there should

always be substituted a sentence based on reasons and capable of

control, especially in the positive system of criminal procedure,

which demands from the judge an acquaintance with anthropology and

criminal sociology, and from his sentence the elements necessary

to the subsequent treatment of the convict, in agreement with the

characteristics of his individuality and of his crime.

But not only is the jury devoid of the qualities attributed to it;

it has a fatal defect, which alone is sufficient to condemn this

institution of the law.

In the first place, it is not easy to understand how a dozen

jurymen, selected at hazard, can actually represent the popular

conscience, which indeed frequently protests against their

decisions. In any case, the fundamental conception of the jury is

that the mere fact of its belonging to the people gives it the

right to judge; and as the ancient assemblies are no longer

possible, the essence of the jury is that chance alone must decide

the practical exercise of this popular prerogative.

Now these two conceptions of the jury are in manifest

contradiction with the universal rule of public end private life,

that social functions should be exercised by persons selected as

most capable.

Thus in everyday life we all require of every labourer the work of

which he is more particularly capable. No one would dream, for

instance, of having his watch mended by a cobbler. The

administration of criminal justice, on the contrary, is demanded

of any one we chance to come across, be he grocer or man of

independent means, painter or pensioner, who may never in his life

have witnessed a criminal trial!

The irregularity of our statutes corresponds to the incapacity of

individual jurymen; for it is evident that we cannot impose the

rigorous process of a special mode of procedure on the first-

comer. And the law heightens the absurdity by plainly declaring

that juries must give their decision without regard to the

consequences of their verdict! ``Jurymen fail in their highest

duty when they have regard to the penal law, and consider the

consequences which their verdict may have upon the accused''

(Article 342 of the French code of criminal procedure).

That is to say, criminal justice should be based on the neglect of

the elementary rule of justice, according to which every man ought

always to consider the possible consequences of his actions. And

the criminal law demands from juries this proof of their

blindness (which is fortunately impossible) that they should judge

blindfold, with no regard for the prisoner, or for the

consequences which their verdict may have upon him.

It was impossible that the advocates of the jury should fail to

see the absurdity of these principles; and they have been

compelled to slur them over, at any rate in ordinary practice.

In respect of the composition of juries, restrictions have been

introduced, by means of lists of eligible persons, selection by

lot, the optional exclusion of a certain number of jurymen by the

public prosecutor and the defence, &c. All these expedients,

however, some of which are imposed by necessity, can only insure a

general and presumptive capacity, for they have the merely

negative effect of contributing to exclude the most manifest moral

or intellectual incapacity. But the only capacity which is

necessary in a judge, which is a special and positive capacity, is

not guaranteed by these restrictions, which, after all, are a

negation of the very principle of the jury.

And even if the jury were always composed of persons of adequate

capacity, it would still be condemned by two inevitable arguments

of human psychology.

First, the assembling of several individuals of typical capacity

never affords a guarantee of collective capacity, for in

psychology a meeting of individuals is far from being equivalent

to the aggregate of their qualities. As in chemistry the

combination of two gases may give us a liquid so in

psychology the assembling of individuals of good sense may give us

a body void of good sense. This is a phenomenon of psychological

fermentation, by which individual dispositions, the least good and

wise, that is the most numerous and effective, dominate the better

ones, as the rule dominates the exceptions. This explains the

ancient saying, ``The senators are good men, but the Senate is a

mischievous animal.''

And this fact of collective inferiority, not to say degeneracy, is

observed in casual assemblies, such as juries, meetings, and the

like, far more than in organised and permanent councils of judges,

experts, &c.

Secondly, the jury, even when composed of persons of average

capacity, will never be able in its judicial function to follow

the best rules of intellectual evolution.

Human intelligence, in fact, both individual and collective,

displays these three phases of progressive development: common

sense, reason, and science, which are not essentially different,

but which differ greatly in the degree of their complexity. Now

it is evident that a gathering of individuals of average capacity,

but not technical capacity, will in its decisions only be able to

follow the rules of common sense, or at most, by way of exception,

the rules of reason--that is, of their common mental habits, more

or less directed by a certain natural capacity. But the higher

rules of science, which are still indispensable for a judgment so

difficult as that which bears on crimes and criminals, will always

be unknown to it.

As for the irregularity of the action of a jury, it has been

deemed that this can be provided against by the formal distinction

between a decision of fact and a decision of law, in obedience to

the advice of Montesquieu, that ``to the popular judgment we

should submit a single object, a fact, a single fact.''

But without dwelling on the remark of Hye-Glunek, that in this way

the legal problem, which ought to be as indivisible as the

syllogism which creates it, is cut into two parts, it is evident

that Cambac<e'>r<e!>s was amply justified in saying, in the

Council of State, that the separation of fact from law is a

fallacy.

In fine, not only under the positive system of criminal procedure,

which demands of the judge, in addition to legal conceptions of

crime, some anthropological and sociological knowledge of

criminals, but even at the present day it is more correct to say

that the jury is concerned with the crime--that is, in the words

of Binding, with a legal fact, and not merely a material fact;

whilst the judge is concerned with the punishment. Thus, in the

Assize Court, the separation of the judgments is not between fact

and law, but only between the crime and the punishment

Even admitting the possibility of this separation of fact and law,

logic and experience have already belied the assertion of those

who say with Beccaria that, ``for the appreciation of facts,

ordinary intelligence is better than science, common sense better

than the highest mental faculties, and ordinary training better

than scientific.''

On the contrary, a criminal trial is not only concerned with the

direct perception of facts, but also and especially with their

critical reconstruction and psychological appreciation. In civil

law the fact is really accessory, and both sides may be agreed in

its exposition, whilst disputing about the application of the law

to this fact. But in criminal justice the fact is the principal

element, and it is not merely necessary to admit or to decide upon

this or that detail, but we have also to regard its causes and

effects, from the individual and the social point of view, without

speaking of the common difficulty of a critical and evidential

appreciation of a mass of significant circumstances. So that, as

Ellero said, in a criminal trial the decision as to fact is far

more difficult than that as to law. And by this time daily

practice has accumulated so many proofs, more or less scandalous,

of the incapacity of the jury even to appreciate facts, that it is

useless to dwell upon them.

To conclude this question of the jury, it remains to speak of its

defects, which are not the more or less avoidable consequences of

a more or less fortunate application of the principle, which might

be the case with any social institution, but, on the contrary, are

an inevitable consequence of the laws of psychology and sociology.

So far as science is concerned, a fact exists in connection with a

general law. For common sense, on the other hand, the actuality

of the particular fact is the only matter of concern. Hence the

inevitable tendency of the jury to be dominated by isolated

facts, with no other guide than sentiment, which,

especially in southern races, confines all pity to the criminals,

whilst the crime and its victims are all but forgotten. The very

keenness of sentiment which would urge the people to administer

``summary justice'' on the criminal, when surprised in the fact,

turns entirely in his favour when he is brought up at the assizes,

with downcast mien, several months after the crime. Hence we

obtain an impassioned and purblind justice.

And the predominance of sentiment over the intelligence of the

jury is revealed in the now incurable aspect of judicial

discussions. There is no need and no use for legal and

sociological studies and for technical knowledge; the only need is

for oratorical persuasiveness and sentimental declamations. Thus

we have heard an advocate telling a jury that, ``in trials into

which passion enters, we must decide with passion.'' Hence, also,

the deterioration of science in the Assize Courts, and its faulty

application, and its completely erroneous consequences.

Moreover, the verdict of the jury cannot represent the sum of

spontaneous and individual convictions--not only in countries

where juries are exposed to all kinds of influences during the

adjournments of the discussion, but even in England, where

unanimity is required, and where all communication of the jury

with the outer world is forbidden until the end of the trial. For

in every case the influence of the most intriguing or most

respected jurymen in the jury's room is always inevitable. So

that we have even had irresponsible suggestions of public

deliberation on the part of the jury.

Against these defects of the jury its advocates have set an

objection in regard to the trained judge, namely that the habit of

judging crimes and offences irresistibly inclines the judge to

look upon every prisoner as guilty, and to extinguish the

presumption of innocence even in cases where it would be most

justified.

This objection has really a psychological basis; for the

conversion of the conscious into the unconscious, and the

polarisation of the intellectual faculties and dispositions, are

facts of daily observation, determined by the biological law of

the economy of force. But it is not sufficient to make us prefer

juries to judges.

In addition to the fact that this mental habit of judges may be

counteracted by a better selection of magistrates under the

reforms which I have indicated, it is to be observed that this

presumption of innocence, as we have seen, is not so absolute as

some would have us believe, especially in case of a trial which

follows upon a series of inquiries and proofs in; the preliminary

hearing.

Again, this tendency of judges is restrained and corrected by the

publicity of the discussions. And all, or nearly all, the famous

and oft-repeated instances of judicial errors go back to the time

of the inquisitorial and secret trial--in regard to which an

interesting historical problem presents itself; that is to say the

co-existence of the inquisitorial trial, which impairs every

individual guarantee, with the political liberties of the

medi<ae>val Italian republics.

This is why the number of acquittals, and of the admission of

extenuating circumstances, is always very remarkable, even in the

Correctional Tribunals, which in Italy show proportions not

greatly differing from those of the Assize Courts.

We must remember that, under our modern penal procedure, it is not

the individual guarantees that are lacking, such as the assigning

of reasons for the sentence, the almost total abolition of

punishments which cannot be reconsidered, appeals, reversals,

revision, which would be still more efficacious under the positive

system which we propose.

One logical consequence of the psychological objection raised

against judges would be the granting of a jury even in the

Correctional Tribunals, though the experience which we have of it

in the Assize Courts is not so encouraging as to leave many

advocates of a jury in the minor courts.

But a decisive objection, founded on the most positive data of

sociology, can be raised against the jury.

The law of natural evolution proves that no variation in the

vegetable or animal organism is useful or durable which is not the

outcome of a slow and gradual preparation by organic forces and

external conditions. Thus an organ which ceases to have a

function to discharge is subject to atrophy, and no new organ is

possible or capable of development if it is not required by a new

function to which it corresponds.

What has been said of organic variations is also true of social

institutions. And when the jury is contemplated from this point

of view, we see that it has been artificially grafted by a

stroke of the legislator's pen on the judicial institutions of the

continent, without the long-continued, spontaneous and organic

connections which it had, for instance, with the English people.

The jury had even disappeared from the continental countries in

which it had left traces of former existence; for it had not found

in the race-characteristics or the social organism that favourable

environment which is supplied in England by the natural groundwork

of institutions and principles which, as Mittermaier says, are its

necessary correlative.

The jury, as it has been politically established on the continent

of Europe, is what Spencer calls a false membrane in the social

organism, having no physiological connection with the rest of the

body politic. So that it is not yet acclimatised, even in France,

after a century of uninterrupted trial.[18]

[18] The actual state of the law in Europe, so far as regards the

jury for common crimes and offences, is as follows:--England,

Scotland, Ireland, and Switzerland have the jury for assizes and

courts of first instance. France, Italy, Cisleithan Austria,

Istria, Dalmatia, Rhenish Prussia, Alsace-Lorraine, Bavaria,

Bohemia, Gallicia, Belgium, Roumania, Greece, Portugal, Russia,

and Malta, have the criminal jury only. Spain had suspended it,

but restored it in 1888. Prussia, Saxony, Baden, Wurtemberg, have

the criminal jury and _echevins_ (bodies of citizens sitting with

the judges) for correctional and police cases. Denmark, Sweden,

and Finland, have the _echevins_. Holland, Norway, Hungary,

Slavonia, Poland, Servia, and Turkey, have neither juries nor

_echevins__.

As for the other bio-sociological law, of single organs for single

functions, it seems to me that if in England the jury and the

magistracy have been developed side by side and interwoven, this

is only a case of organic integration. But on the continent, as

the jury has been added artificially to the magistracy,

this is on the other hand a genuine example of non-natural growth.

And if it be said that the jury, as an advance from the

homogeneous to the heterogeneous, indicates a higher degree of

social evolution, we must draw a distinction between

differentiations which amount to evolution and those which, on the

contrary, are symptoms of dissolution. Division of labour,

physiological or social, is a true evolutionary differentiation;

whilst modifications introduced by a disease in the animal

organism, or by a revolt in the social organism, are but the

beginning of a more or less extended dissolution.

Now the jury belongs to the domain of social pathology, for it is

essentially contrary to the law of the specialisation of

functions, according to which every organ which becomes more

adapted to a given task is no longer adapted to any other. It is

only in the lower organisms that the same tissue or organ can

perform different functions, whilst in the vertebrates the stomach

can only serve for digestion, the lungs for oxygenation, and so

on. Similarly in primitive societies, each individual is soldier,

hunter, tiller of the soil, &c., whilst with the progress of

social evolution every man performs his special function, and

becomes unfitted for other labours. In the jury we have a return

to the primitive confusion of social functions, by giving to any

chance comer, who may be an excellent labourer, or artist, a very

delicate judicial function, for which he has no capacity to-day,

and will have no available experience to-morrow.

In modern societies, to tell the truth, there is another function

assigned to all citizens, outside of their special capacity, and

that is the electoral duty. But the cases are very different.

The franchise does not demand a labour so difficult and delicate

as critical judgment, and the reconstruction of the conditions of

an act and of its author. It has no direct influence on the

positive function of the person elected, but on the contrary it is

a confession of the special incapacity of the elector to do what

he intrusts to the capacity of the person elected. The franchise

is but an elementary function of the assimilation of physiological

elements in the social organism, which in the animal organism is

performed by the aggregate of living cells, and in society by the

aggregate of individuals, not being idiots or criminals, who

possess the minimum of social energy.

Far different is the administration of criminal justice, a

technical and very noble function, which has nothing in common

with the elementary function of the franchise. I could not indeed

agree with the assertion of Carrara, who thought it a

contradiction to deny to the people any participation in the

exercise of the judicial authority when they are allowed to

participate in the exercise of legislative authority. In the

first place, the people have but a very indirect share in the

legislative function, and, even where the referendum exists, very

useful as I believe it to be, the people have only a simple,

almost negative function, to say Yes or No to a law which they

have not made, and would have had no technical ability to make.

Thus the argument of Carrara could only lead to the popular

election of judges, as of legislators, and to a control by the

people of the administrative action of the judges when elected No

doubt this would have theoretical advantages, though in my opinion

it would raise practical difficulties, especially in nations which

do not possess a very keen conscience and political activity,

after enfeeblement by centuries of despotism, or of political and

administrative tutelage and centralisation.

The jury, then, is a retrogressive institution, as shown by

history and sociology, for it represents the medi<ae>val and

instinctive phase of criminal justice. It has, indeed, a few

advantages (there is always a certain profit in misfortune),

especially when it operates on the final outcome of the classical

theories--bringing to bear, for instance, an irresistible force

against repeated theft, or murders committed at the instigation of

others. And it has sometimes drawn attention to necessary penal

reforms, after accepting certain conclusions of the positive

school, such as the acquittal of criminals of passion, and

political prisoners, or a greater severity towards habitual

criminals.

But the only possible conclusion from the foregoing criticisms is

that the jury should be abolished for the trial of common crimes,

_*after_ the introduction of reforms which would ensure the

capacity and independence of the judges.

Meanwhile, since it is much easier to establish a new social

institution than to abolish one, it is worth while to indicate the

principal and most urgent reforms which should be made in the jury

system, so as to eliminate its more serious and frequent

disadvantages.

The theoretical distinction of the classical school between

ordinary and political crimes is not very precise, for the so-

called political crimes are either not crimes (as when they are

confined to the manifestation of an idea), or they are common

crimes which spring from a lofty and social passion in

individuals, who have the characteristics of the criminal by

passion, or, in other words,--are but quasi-criminals; or else

they are common crimes committed by ordinary malefactors, under

the pretext of a popular idea. Instead of distinguishing crimes,

I think we ought to distinguish between ordinary and political

criminals, according to their determining motives, and the social

bearings and historical moment of their acts. At the same time,

whilst our criminal laws retain this distinction, I think it is

useful to keep the jury for the trial of political crimes and

offences, and for those connected with the press and with society

as a whole; for if in these cases the jury might yield to the

influence of class interests and prejudices (as for instance in

the trial of actions arising out of the conflict of capital and

labour), the danger will still be less than it would be with

judges alone, who are not sufficiently independent of the

executive, which in its turn is but the secular arm of the

dominant class, and which therefore combines the interests and

prejudices of the political order with those of the economic and

moral order which dominate the jury.

For common crimes it would be necessary to withhold from a

jury the trial of prisoners who avow their crime. The essence of

a trial by indictment is the principle that the discussion as to

punishment is a private affair, and it has no further ground for

existence when one of the parties withdraws from the duel. Hence

the English mistrust of a prisoner's confession of guilt, which in

the inquisitorial trial, on the other hand, is a mainstay of the

evidence. Yet I believe that in these cases the Scottish system

is preferable to the English. In England the judge begins by

asking the prisoner if he is Guilty or Not Guilty, and in case of

a confession he passes sentence without a verdict from the jury.

In Scotland, on the contrary, the prosecutor can furnish his

proof, in spite of the confession of the prisoner, and demand a

verdict from the jury. In this way it is possible to avoid not

only a scandalous acquittal of prisoners who have confessed their

guilt (as happens in Italy, France, and elsewhere), but also the

danger that the confession may not be true, and that an innocent

man may be condemned.

Juries ought, moreover, as proposed by M. Ellero, to specify

attenuating circumstances, on each of which a special question

ought to be put to them.

The jury ought also to have the right of spontaneously finding in

a sense less serious than that of the charge, even when no

corresponding question has been put to them.

But at the same time it cannot be denied that these would only be

palliatives, more or less efficacious.

The only positive conclusion is that, whilst retaining the jury

for crimes of the political and social order, we should aim

at its abolition for common crimes, immediately after securing

stringent reforms as to the independence and capacity of the

judges.

IV.

It needs no further demonstration that the modern organisation of

punishment, based partly on the assumption that we can measure the

moral culpability of criminals, and partly on an illusion as to

their general amendment, and almost entirely reduced, in

consequence, to imprisonment and the cell system, has absolutely

failed to protect society against crime.

Holtzendorff, one of the best known of the classical school,

frankly confessed that ``the prison systems have made shipwreck.''

So also in Italy we have had disquisitions ``on the futility of

repression,'' and in Germany it has been held that ``existing

criminal law is powerless against crime.'' Thus the necessity of

taking steps to counteract this failure is forced upon us more and

more every day. We must proceed either by way of legislative

reforms, as effectual as we can make them, but always inspired by

reaction against the established prison system, or by a propaganda

on scientific lines. The most striking form which has been taken

by the latter process is the International Union of Penal Law,

which in 1891, two years after its foundation, numbered nearly six

hundred members of various nationalities, and which in the second

clause of its charter, in spite of the varied reservations of a

few members, notably supported the positive theories.

The defects of the penal system inspired by the theories of

the classical school of criminal law, and by the actual

regulations of the classical prison school, may be briefly summed

up. They are, a fallacious scale of moral responsibility;

absolute ignorance and neglect of the physio-psychological types

of criminals; intervals between verdict and sentence on the one

hand, and between the sentence and its execution on the other,

with a consequent abuse of pardons; disastrous practical effects

of corruption and of criminal association in prisons; millions of

persons condemned to short terms of imprisonment, which are

foolish and absurd; and a continuous, inexorable increase of

recidivism.

So that the tribunals of Europe, as M. Prins observed, with the

absolute impersonality of modern justice, allow their sentences to

fall upon unhappy wretches as a tap allows water to fall drop by

drop upon the ground.

Without counting fines or police detention, there were sentenced

in Italy, in the ten years 1880-89, to various terms of

imprisonment, 587,938 persons by the Pretors, and 465,130 by the

Correctional Tribunals. That is, more than a million terms in the

minor courts within ten years!

And the total number sentenced in Italy to various punishments, by

Pretors, Tribunals, and Assize Courts, in the same ten years, was

not less than 3,230,000.

As for recidivism, without repeating the familiar figures of its

annual increase, it will suffice to recall the astounding fact to

which I drew attention before the central Commission of Legal

Judicial Statistics. That is to say, amongst the prisoners

condemned in 1887 for simple homicide, there were 224 who had been

already condemned, either _*for the same crime_ (63), or for a

crime mentioned in the same section of the penal code (181); and

even of those condemned for qualified manslaughter, 78 had already

been condemned, either _*for the same crime_ (8), or for one of

like character.

In France we have figures equally striking, for they relate not to

the effect of exceptional conditions, or conditions peculiar to

this or that country, but to the uniform consequence of the

classical theories of criminal law and prison organisation.

The total number condemned to imprisonment by the French

tribunals, and detained by the police, in the ten years 1879-88,

was 1,675,000; the Tribunal sentences under six days being

113,000.

And the total condemned to punishments of various kinds, by Assize

Courts, Tribunals, and police courts, reached in the same ten

years the enormous number of 6,440,000 individuals!

The meaning of this is that penal justice at the present moment is

a vast machine, devouring and casting up again an enormous number

of individuals, who lose amongst its wheels their life, their

honour, their moral sense, and their health, bearing thenceforth

the ineffaceable scars, and falling into the ever-growing ranks of

professional crime and recidivism, too often without a hope of

recovery.[19]

[19] As regards recidivism and the enormous numbers tried, England

is in as bad a position as Italy and France. See my articles in

_Nineteenth Century__, 1892, and _Fortnightly Review__, 1894.--ED.

It is impossible, then, to deny the urgent necessity of

substituting for our present penal organisation a better system

corresponding to the governing conditions of crime, more effectual

for social defence, and at the same time less gratuitously

disastrous for the individuals with whom it deals.

The positive school, in addition to the partial reforms proposed

by Lombroso, and by myself in the second edition of this work, has

put forward in the _Criminology_ of Garofalo a ``rational system

of punishment,'' whereof it is desirable to give a summary.

I. MURDERERS (moral insensibility and instinctive

cruelty) who commit--

Murder for greed, or other selfish

gratification Criminal Lunatic Asylums: or

Murder unprovoked by the victim the death penalty.

Murder with attendant cruelty

II. VIOLENT OR IMPULSIVE CHARACTERS (deficiency

of the sense of pity, with prejudices on the

subject of honour, on the duty of revenge, &c.).

Adults who commit--

Violent assault suddenly provoked Removal of the offender from the

by a cruel injury neighbourhood of the victim or

Justifiable homicide in self-defence his family.

Transportation to an island, colony

Homicide to avenge honour (isolated or village--at liberty, under

or endemic) supervision (for an indefinite

period, with from 5 to 10 years

supervision).

Bodily injury during a quarrel; Damages and fine: heavy for such

slight and transitory malice; as can pay. Alternative

blows; threats; slander; verbal penalty:--deduction from wages,

insults or forced labour. Imprisonment

in case of refusal.

Malicious injury or disfigurement; Criminal lunatic asylum (for

mutilation; rape or outrage with hysterical or epileptic), or

violence; restraint on personal Transportation for an indefinite

liberty period, with supervision from 5

to 10 years.

Young persons who commit--

Criminal lunatic asylums (for

those with congenital

Crimes of violence without excuse, tendencies).

or rape Penal colony in case of relapse.

Transportation without constraint.

III. DISHONEST CRIMINALS. Adults who commit--

Habitual theft, swindling, incendiarism, Lunatic asylums (if insane or

forgery, extortion epileptic). Transportation.

Labour-gangs (unfixed periods);

Occasional theft; swindling; or suspension of right to exercise

forgery; extortion; incendiarism a profession, until complete

reparation of damage.

Peculation; embezzlement; sale of Loss of office. Suspension of

offices; abuse of authority civil rights. Fine. Restitution.

Reparation of damage (with optional

Incendiarism; vindictive destruction imprisonment). Criminal

of property (without personal lunatic asylums (for the insane).

injury) Transportation (for recidivists).

Bankruptcy, when due to malpractice Restitution. Prohibition to trade

or to discharge public functions.

Uttering false coin; forgery of stock Imprisonment (unfixed periods)

and certificates; personation, and fine, in addition to loss of

false witness, &c. office, and restitution.

Bigamy, palming or concealment of Banishment for unfixed periods.

birth

Young persons who commit--

An agricultural colony (for unfixed

Theft, swindling, &c. periods).

IV. Persons guilty of--

Outbreaks, resistance or disobedience Imprisonment (for unfixed periods)

to authority

In other words, the system of repression proposed

by M. Garofalo amounts to this:--

Absolute elimination of the criminal

Penalty of death

Criminal lunatic asylum.

Transportation with liberty.

Perpetual banishment.

Relative elimination Banishment for various periods.

Agricultural colonies.

Interdiction from a particular

neighbourhood.

By payment of money.

Reparation of damages Deduction from wages.

Fine (going to the State) Forced labour, without

Indemnification of the victims imprisonment.

Imprisonment for fixed periods for special offences (forgery and outbreaks);

or as alternative to indemnification or forced labour.

Interdiction of certain professions and public functions.

M. Liszt also, agreeing with the positive school in regard to the

necessity of a radical reform in the penal system, yet with

certain reservations, has propounded a scheme, which, however, as

it does not sufficiently consider various classes of criminals,

whom he divides merely into the habitual and the occasional, would

need completion, especially in comparison with the well-reasoned

scheme of Garofalo. M. Liszt's system is as follows:--

_Punishment by fines_.

In proportion to the property of the

offender--not alternative with For _offences_ (with alternative

imprisonment imprisonment).

Capable of being worked out by For _contraventions of the law_

forced labour without imprisonment (without imprisonment).

_Conditional sentences_.

For first offenders condemned to

imprisonment, with or without For _offences_ punishable by

sureties for three years imprisonment.

__Imprisonment_ (for an indeterminate period, a maximum and minimum

being enacted).

Separate confinement--six weeks to two years.

House of detention (separate for 2 to 15 years (with police

one year, then gradual relaxation supervision and assistance of

discharged prisoners)--or for life.

_Indemnifications_ (always as a civil liability) added to other penalties.

I believe, however, that it is necessary, before laying down

practical and detailed schemes, more or less complete, to

establish certain general criteria, based upon the

anthropological, physical, and social data of crime, such as may

lead up to a positive system of social defence.

These fundamental criteria, it seems to me, can be reduced to the

three following:--(1) No fixity in the periods of segregation of

criminals; (2) the social and public character of the exaction of

damages; (3) the adaptation of defensive measures to the various

types of criminals.

1. For every crime which is committed, the problem of punishment

ought no longer to consist in administering a particular dose, as

being proportionate to the moral culpability of the criminal; but

it should be limited to the question whether by the actual

conditions (breach of law or infliction of injury) and by the

personal conditions (the anthropological type of the criminal) it

is necessary to separate the offender from his social environment

for ever, or for a longer or shorter period, according as he is or

is not regarded as capable of being restored to society, or

whether it is sufficient to exact from him a strict reparation of

the injury which he has inflicted.

Under this head there is a radical contradiction. The

existing schemes of punishment, differing in their machinery (and

out of harmony with the sentence of the judge, often even with the

terms of the law), are all based on the principle of fixed periods

of punishment, graduated into hundreds and thousands of possible

doses, and have regard far more to the crime than to the criminal.

On the other hand we have the positive system of punishment, based

on the principle of an _unfixed segregation_ of the criminal,

which is a logical consequence of the theory that punishment ought

not to be the visitation of a crime by a retribution, but rather a

defence of society adapted to the danger personified by the

criminal.

This principle of unfixed punishment is not new, but it is only

the positive theory which has given it system and life. The idea

of justice as assigning punishment to a crime, measured out by

days and weeks, is too much opposed to the principle of the

indeterminate sentence to allow it to receive any systematic trial

under the sway of the classical theories. There has been only an

isolated and exceptional use of it here and there, such as the

seclusion of mad criminals in special asylums, ``during her

Majesty's pleasure,'' in England. Nevertheless, personal freedom

(which is held to be violated by seclusion for unfixed periods) is

greatly respected by the English people.

The fundamental principle of law is that of a restriction imposed

by the necessity of social existence. It is evident, therefore,

to begin with, that seclusion for an unfixed period, as for life,

is in no way irreconcilable with this principle of law, when

imposed by necessity. Thus it has been proposed, even by

the classical school, as a mode of compensation or adjustment.

If, indeed, we admit an increase of punishment for a first

relapse, it is logical that this increase should be proportional

to the number of relapses, until we come to perpetual seclusion or

transportation, and even to death, as under the medi<ae>val laws.

So that there are some of the classical school who, by way of

being logical if not practical, and refusing to admit progressive

increase, begin by refusing increase in any degree, even for a

first relapse.

Moreover, if the jurists agree in allowing conditional liberation,

before the term assigned in the sentence, when the prisoner seems

to have given proof of amendment, the natural consequence, by mere

abstract logic, ought to be a prolongation of punishment for the

prisoner who is not amended, but continues to be dangerous.

This is admitted, amongst others, by Ortolan, Davesies de

Pont<e!>s, and Roeder, who quote as favourable, though only for

recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve,

von Lichtenberg, G<o:>tting, Krause, Ahrens, Lucas Bonneville,

Conforti, and others, amongst students of criminality; and

Ducpetiaux, Ferrus, Thomson, Mooser, Diez, Valentini, and D'Alinge

amongst prison experts.

After this first period, the principle of segregation for an

unfixed term, as a basis for the penal system, has been supported

by Despine, and developed by a few German writers. These latter

have insisted especially on the disadvantages of the penal

systems inspired by the classical theories, though they run

somewhat to excess, like Mittelst<a:>dt, who proposed the re-

establishment of the brutal punishment of flogging.

In corporal punishments, it is true, there would be a certain gain

of efficaciousness, particularly against such hardened offenders

as the born criminals, so that there is a reaction in favour of

these punishments. M. Roncati, for instance, writing of prison

hygiene, says that he would be glad to see ``the maternal

r<e'>gime,'' with its salutary use of physical pain before the

child has developed a moral sense; and if flogging is

objectionable, resort might be had to electricity, which is

capable of giving pain without being dangerous to health or

revolting. Similarly Bain says that the physiological theory of

pleasure and pain has a close relation to that of rewards and

punishments, and that, as punishment ought to be painful, so long

as it does not injure the convict's health (which imprisonment is

just as likely to do), we might have recourse to electric shocks,

which frighten the subject by their mysterious power, without

being repugnant. Again, the English Commission of Inquiry into

the results of the law of penal servitude declared in its report

that, ``In English prisons, disciplinary corporal punishments

(formerly the lash, then the birch) are inflicted only for the

most serious offences. The evidence has shown that in many cases

they produce good results.''

Nevertheless corporal punishments, as the main form of repression,

even when carried out with less barbarous instruments, are

too deeply opposed to the sentiment of humanity to be any longer

possible in a penal code. At the same time they are admissible as

disciplinary punishments, under the form of cold baths, electric

shocks, &c., all the more because, whether prescribed by law or

not, they are inevitable in prisons, and, when not regulated by

law, give rise to many abuses, as was shown at the Stockholm

Prison Conference in 1878.

I agree with Kirchenheim that Dr. Kraepelin's scheme of seclusion

for unfixed periods is more practical and hopeful. When the

measure of punishment is fixed beforehand, the judge, as Villert

says, ``is like a doctor who, after a superficial diagnosis,

orders a draft for the patient, and names the day when he shall be

sent out of hospital, without regard to the state of his health at

the time.'' If he is cured before the date fixed, he must still

remain in the hospital; and he must go when the time is up, cured

or not.

Semal reached the same conclusion in his paper on ``conditional

liberation,'' at the second Congress of Criminal Anthropology.

And this notion of segregation for unfixed periods, put forward in

1867 for incorrigible criminals by the Swiss Prison Reform

Association, has already made great progress, especially in

England and America, since the Prison Congress of London (1872)

discussed this very question of indefinite sentences, which the

National Prison Congress at Cincinnati had approved in the

preceding year.

In 1880 M. Garofalo and I both spoke in favour of

indefinite segregation, though only for incorrigible

recidivists; and the same idea was strikingly supported in M. Van

Hamel's speech at the Prison Congress at Rome (1885). The

eloquent criminal expert of Amsterdam, speaking ``on the

discretion which should be left to the judge in awarding

punishment,'' made a primary distinction between habitual

criminals, incorrigible and corrigible, and occasional criminals.

``For the first group, perpetual imprisonment should depend on

certain conditions fixed by law, and on the decision of the judge

after a further inquiry. For the second group, the application of

an undefined punishment after the completion of the first sentence

will have to depend in the graver cases on the conditions laid

down by law, and in less serious cases upon the same conditions

together with the decision of the judge, who will always decide

from time to time, after further inquiry, as to the necessity for

prolonging the imprisonment. For the third group, the judge will

have to be limited by law, in deciding the punishment, by special

maximums, and with a general minimum.''

The Prison Congress of Rome naturally did not accept the principle

of punishment for unfixed periods. More than that, advancing on

the classical tendency, it decided that ``the law should fix the

maximum of punishment beyond which the judge may not in any case

go; and also the minimum, which however may be diminished when the

judge considers that the crime was accompanied by extenuating

circumstances not foreseen by the law.''

It is only of late years, in consequence of the reaction

against short terms of imprisonment, that the principle of

segregation for unfixed periods has been developed and accepted by

various writers, in spite of the feeble objections of Tallack,

Wahlberg, Lamezan, von Jagemann, &c.

Apart, also, from theoretical discussion, this principle has been

applied in a significant manner in the United States, by means of

the ``indeterminate sentence.'' The House of Correction at Elmira

(New York) for young criminals carries into effect, with special

regulations of physical and moral hygiene, the indeterminate

imprisonment of young prisoners; and this principle, approved by

the Prison Congresses at Atalanta{sic} (1887), Buffalo (1888), and

Nashville (1889), has been applied also in the New York prisons,

and in the States of Massachusetts, Pennsylvania, Minnesota, and

Ohio.