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CRIMINAL SOCIOLOGY 



MODERN CRIMINAL SCIENCE SERIES 

Published under the auspices of the American Institute of Criminal Law and 

Criminology 

1. Modern Theories of Criminality. By C. Bernaldo DE Quir6s, of 
Madrid. Translated from the Second Spanish edition, by Dr. Alfonso de Salvio, 
Assistant Professor of Romance Languages in Northwestern University. With an 
American Preface by the Author, and an Introduction by W. W. Smithers, of the 
Philadelphia Bar. 

2. Criminal Psychology. By Hans Gross, Professor of Criminal Law in the 
University of Graz, Austria, Editor of the Archives of Criminal Anthropology and 
Criminalistics, etc. Translated from the Fourth German edition, by Dr. Horace M. 
Kallen, Professor of Philosophy in Wisconsin University. With an American Preface 
by the Author, and an Introduction by Joseph Jastrow, Professor of Psychology in 
the University of Wisconsin. 

3. Crime, Its Causes and Remedies. By Cesare Lombroso, late Professor 
of Psychiatry and Legal Medicine in the University of Turin, author of the " Criminal 
Man," Founder and Editor of the "Archives of Psychiatry and Penal Sciences." 
Translated from the French and German editions by Rev. Henry P. Horton, M.A., 
of Ithaca, N. Y. With an Introduction by Maurice Parmelee, Associate Professor 
of Sociology in the University of Missouri. 

4. The Individualization of Punishment. By Raymond Saleilles, Professor 
of Comparative Law in the University of Paris. Translated from the Second French 
edition, by Mrs. Rachael Szold Jastrow, of Madison, Wis. With an Introduction 
by Roscoe Pound, Professor of Law in Harvard University. 

5. Penal Philosophy. By Gabriel Tarde, Late Magistrate in Picardy, 
Professor of Modern Philosophy in the College of France, and Lecturer in the Paris 
School of Political Science. Translated from the Fourth French edition by Rapelje 
Howell, of the New York Bar. With an Editorial Preface by Edward Lindsey, of 
the Warren, Pa., Bar, and an Introduction by Robert H. Gault, Assistant Professor 
of Psychology in Northwestern University. 

6. Crime and Its Repression. By Gtjstav Aschaffenburg, Professor of 
Psychiatry in the Academy of Practical Medicine at Cologne, Editor of the "Monthly 
Journal of Criminal Psychology and Criminal Law Reform." Translated from the 
Second German edition by Adalbert Albrecht. With an Editorial Preface by 
Maubice Parmelee, Associate Professor of Sociology in the University of Missouri, 
and an Introduction by Arthur C. Train, formerly Assistant District Attorney for 
New York County. 

7. Criminology. By Raffaelle Garofalo, late President of the Court of 
Appeals of Naples. Translated from the First Italian and the Fifth French edition, 
by Robert W. Millar, Esq., of Chicago, Professor in Northwestern University Law 
School. With an Introduction by E. Ray Stevens, Judge of the Circuit Court, Madi- 
son, Wis. 

8. Criminality and Economic Conditions. By W. A. Bonger, Doctor in Law 
of the University of Amsterdam. Translated from the French by Henry P. Horton, 
M.A., of Ithaca, N. Y. With an American Preface by the Author, and an Editorial 
Preface by Edward Lindsey, of the Warren, Pa., Bar, and an Introduction by Frank 
H. Nobcboss, Justice of the Supreme Court of Nevada. 

9- Criminal Sociology. By Enrico Febri, of the Roman Bar, and Professor 
of Criminal Law and Procedure in the University of Rome, Editor of the "Archives of 
Psychiatry and Penal Sciences," the "Positivist School in Penal Theory and Practice," 
etc. Translated from the Fourth Italian and Second French edition, by Joseph I. 
Kelly, late Lecturer on Roman Law in Northwestern University, and Dean of the 
Faculty of Law in the University of Louisiana, and John Lisle, late of the Philadelphia 
Bar. With an American Preface by the Author, an Editorial Preface by William W. 
Smithers, of the Philadelphia Bar, and Introductions by Charles A. Ellwood, Pro- 
fessor of Sociology in the University of Missouri, and Quincy A. Myers, formerly 
Chief Justice of the Supreme Court of Indiana. 



THE MODERN CRIMINAL SCIENCE SERIES 

Published under the Auspices of 
THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY 



Criminal Sociology 



By ENRICO FERRI 

Professor of Criminal Law in the University of Rome 
Deputy in the Italian Parliament, etc. 

Translated by 

JOSEPH I. KELLY 

Late Lecturer on Roman Law in Northwestern University 
and 

JOHN LISLE 

Late Member of the Philadelphia Bar 
Edited by 

WILLIAM W. SMITHERS 

Of the Philadelphia Bar 

With Introductions by 
CHARLES A. ELLWOOD 

Professor of Sociology in the University of Missouri 

and 

QUINCY A. MYERS 

Former Chief Justice of the Supreme Court of Indiana and former 
President of the Institute of Criminal Law and Criminology 



BOSTON 
LITTLE, BROWN, AND COMPANY 

1917 

(■G 



Copyright, 1917, 
By Little, Beown, and Company. 



All rights reserved 



. J. Parkhill & Co., Boston, U.S.A. 



GENERAL INTRODUCTION TO THE 
MODERN CRIMINAL SCIENCE SERIES. 

At the National Conference of Criminal Law and Criminology, 
held in Chicago, at Northwestern University, in June, 1909, 
the American Institute of Criminal Law and Criminology was 
organized; and, as a part of its work, the following resolution was 
passed: 

" Whereas, it is exceedingly desirable that important treatises 
on criminology in foreign languages be made readily accessible in 
the English language, Resolved, that the president appoint a com- 
mittee of five with power to select such treatises as in their judg- 
ment should be translated, and to arrange for their publication." 

The Committee appointed under this Resolution has made careful 
investigation of the literature of the subject, and has consulted 
by frequent correspondence. It has selected several works from 
among the mass of material. It has arranged with publisher, with 
authors, and with translators, for the immediate undertaking and 
rapid progress of the task. It realizes the necessity of educating 
the professions and the public by the wide diffusion of information 
on this subject. It desires here to explain the considerations which 
have moved it in seeking to select the treatises best adapted to the 
purpose. 

For the community at large, it is important to recognize that 
criminal science is a larger thing than criminal law. The legal 
profession in particular has a duty to familiarize itself with the 
principles of that science, as the sole means for intelligent and 
systematic improvement of the criminal law. 

Two centuries ago, while modern medical science was still young, 
medical practitioners proceeded upon two general assumptions: 
one as to the cause of disease, the other as to its treatment. As 
to the cause of disease, — disease was sent by the inscrutable will 
of God. No man could fathom that will, nor its arbitrary opera- 
tion. As to the treatment of disease, there were believed to be 
a few remedial agents of universal efficacy. Calomel and blood- 
letting, for example, were two of the principal ones. A larger or 



Vi GENERAL INTRODUCTION 

smaller dose of calomel, a greater or less quantity of bloodletting, 
— this blindly indiscriminate mode of treatment was regarded as 
orthodox for all common varieties of ailment. And so his calomel 
pill and his bloodletting lancet were carried everywhere with him 
by the doctor. 

Nowadays, all this is past, in medical science. As to the causes 
of disease, we know that they are facts of nature, — various, but 
distinguishable by diagnosis and research, and more or less capa- 
ble of prevention or control or counter-action. As to the treat- 
ment, we now know that there are various specific modes of treat- 
ment for specific causes or symptoms, and that the treatment must 
be adapted to the cause. In short, the individualization of disease, 
in cause and in treatment, is the dominant truth of modern medical 
science. 

The same truth is now known about crime; but the Understand- 
ing and the application of it are just opening upon us. The old 
and still dominant thought is, as to cause, that a crime is caused 
by the inscrutable moral free will of the human being, doing or 
not doing the crime, just as it pleases; absolutely free in advance, 
at any moment of time, to choose or not to choose the criminal act, 
and therefore in itself the sole and ultimate cause of crime. As to 
treatment, there still are just two traditional measures, used in 
varying doses for all kinds of crime and all kinds of persons, — 
jail, or a fine (for death is now employed in rare cases only). But 
modern science, here as in medicine, recognizes that crime also 
(like disease) has natural causes. It need not be asserted for one 
moment that crime is a disease. But it does have natural causes, — 
that is, circumstances which work to produce it in a given case. 
And as to treatment, modern science recognizes that penal or re- 
medial treatment cannot possibly be indiscriminate and machine- 
like, but must be adapted to the causes, and to the man as affected 
by those causes. Common sense and logic alike require, inevitably, 
that the moment we predicate a specific cause for an undesirable 
effect, the remedial treatment must be specifically adapted to that 
cause. 

Thus the great truth of the present and the future, for criminal 
science, is the individualization of penal treatment, — for that man, 
and for the cause of that man's crime. 

Now this truth opens up a vast field for re-examination. It 
means that we must study all the possible data that can be causes 
of crime, — the man's heredity, the man's physical and moral 



GENERAL INTRODUCTION vii 

make-up, his emotional temperament, the surroundings of his 
youth, his present home, and other conditions, — all the influencing 
circumstances. And it means that the effect of different methods 
of treatment, old or new, for different kinds of men and of causes, 
must be studied, experimented, and compared. Only in this way- 
can accurate knowledge be reached, and new efficient measures 
be adopted. 

All this has been going on in Europe for forty years past, and in 
limited fields in this country. All the branches of science that can 
help have been working, — anthropology, medicine, psychology, 
economics, sociology, philanthropy, penology. The law alone has 
abstained. The science of law is the one to be served by all this. 
But the public in general and the legal profession in particular 
have remained either ignorant of the entire subject or indifferent 
to the entire scientific movement. And this ignorance or indiffer- 
ence has blocked the way to progress in administration. 

The Institute therefore takes upon itself, as one of its aims, to 
inculcate the study of modern criminal science, as a pressing duty 
for the legal profession and for the thoughtful community at large. 
One of its principal modes of stimulating and aiding this study is 
to make available in the English language the most useful treatises 
now extant in the Continental languages. Our country has started 
late. There is much to catch up with, in the results reached else- 
where. We shall, to be sure, profit by the long period of argument 
and theorizing and experimentation which European thinkers and 
workers have passed through. But to reap that profit, the results of 
their experience must be made accessible in the English language. 

The effort, in selecting this series of translations, has been to 
choose those works which best represent the various schools of 
thought in criminal science, the general results reached, the points 
of contact or of controversy, and the contrasts of method — having 
always in view that class of works which have a more than local 
value and could best be serviceable to criminal science in our country. 
As the science has various aspects and emphases — the anthro- 
pological, psychological, sociological, legal, statistical, economic, 
pathological — due regard was paid, in the selection, to a representa- 
tion of all these aspects. And as the several Continental countries 
have contributed in different ways to these various aspects, — France, 
Germany, Italy, most abundantly, but the others each its share, — 
the effort was made also to recognize the different contributions as 
far as feasible. 



viii GENERAL INTRODUCTION 

The selection made by the Committee, then, represents its 
judgment of the works that are most useful and most instructive for 
the purpose of translation. It is its conviction that this Series, 
when completed, will furnish the American student of criminal 
science a systematic and sufficient acquaintance with the controlling 
doctrines and methods that now hold the stage of thought in Con- 
tinental Europe. Which of the various principles and methods 
will prove best adapted to help our problems can only be told after 
our students and workers have tested them in our own experience. 
But it is certain that we must first acquaint ourselves with these 
results of a generation of European thought. 

In closing, the Committee thinks it desirable to refer the mem- 
bers of the Institute, for purposes of further investigation of the 
literature, to the " Preliminary Bibliography of Modern Criminal 
Law and Criminology " (Bulletin No. 1 of the Gary Library of 
Law of Northwestern University), already issued to members of 
the Conference. The Committee believes that some of the Anglo- 
American works listed therein will be found useful. 

Committee on Translations. 

Chairman, John H. Wigmoee, 

Professor of Law in Northwestern University, Chicago. 
Ernst Freund, 

Professor of Law in the University of Chicago. 
Maurice Parmelee, 

Professor of Sociology in the College of the City of New York. 
Roscoe Pound, 

Professor of Law in Harvard University. 
Edward Lindsay, 

Of the Warren, Pa., Bar. 

Wm. W. Smithers, 

Secretary of the Comparative Law Bureau of the American 
Bar Association, Philadelphia, Pa. 



CONTENTS 



PAGE 



General Introduction to the Modern Criminal Sci- 
ence Series v 

Editorial Preface by William W. Smithers xxi 

Introduction by Charles A. Ellwood xxvii 

Introduction by Quincy A. Myers xxxv 

Author's Preface- to the American Edition xxxix 

List of Abbreviations xlv 

Introduction 
THE POSITIVE SCHOOL OF CRIMINAL LAW 

I. The classical criminal school inaugurated by Beccaria. The classical 
penitentiary school inaugurated by Howard. Application of the posi- 
tive method to criminal law, as in medicine and political economy. 
In lieu of the diminution of penalties is offered the dimin ution of 
crimes, and instead of the abstract study of crime as a judicial phe- 
nomenon, the positive study of crime as a natural social phenomenon 

is advocated . ... 1 

II. First accusations against the positive school. The eclectics. Scientific 

and practical expansion in the new direction 1 

III. Criminal Sociology 1 

§ 1. Origin of Criminal Sociology . 1 

§ 2. The Classical Criminal School Inaugurated by Beccaria 2 

§ 3. The Classical Penitentiary School Inaugurated by Howard .... 5 

§ 4. Beccaria and Howard and their Limitations . 5 

§5. The Positive Method . 7 

§ 6. The Positive Method and the Social Sciences ... 11 

§ 7. The Application of the Positive Method to Criminal Law ... 12 

§ 8. The Failure of Classical Criminology . . 14 

§ 9. The Positive Method in Political Economy 16 

§ 10. Programme of the New School . . 18 

§ 11. Eclecticism 21 

§ 12. The Third School 22 

§ 13. The Positive Criminal School is in its Third Period . . .... 25 

§ 14. The International Congresses of Criminal Anthropology 26 

§ 15. The International Union of Criminal Law 33 

§ 16. Practical Applications of the Positive School 33 

§ 17. Criminal Sociology, — the Programme j 36 



x CONTENTS 

Part I 
DATA OF CRIMINAL ANTHROPOLOGY 

Chapter I 
NATURAL HISTORY OF CRIMINAL MAN 

The genesis of the anthropological c rimin al school. Methods. Value of data. 

Observation of Criminals. piaa 

§ 18. The Genesis of the Anthropological Criminal School 40 

§ 19. The Methods of the Anthropological Criminal School 43 

§ 20. Value of Anthropological Data in Anthropology and Criminal 

Sociology 45 

§ 21. Craniological Data 48 

§ 22. Physical Data 49 

§ 23. Criminal Psychology; Moral Insensibility and Lack of Foresight 49 

Chapter II 

FUNDAMENTAL OBJECTIONS TO THE DATA OF 
ANTHROPOLOGY 

Methods. Scientific assumption. Disagreement of data. Criminal traits 
in honest men. Historical and anthropological indetermination of 
crime. Definition of crime. The criminal type. Origin and nature 
of criminality. 

§ 24. Objections Advanced against Criminal Anthropology 52 

§ 25. Methods Employed in the Study of Criminals; Small Number of 

Criminals Examined 52 

§ 26. Method Employed in the Study of Criminals; Inexactness of Com- 
parisons . . . 55 

§ 27. Scientific Assumptions of Criminal Anthropology 57 

§ 28. Influence of Organic Conditions upon Moral Conduct 58 

§ 29. Sources of Objections to Anthropological Data 60 

§ 30. Qualitative and Quantitative Disagreements in the Data of Criminal 

Anthropology ... 61 

§ 31. Disagreements in the Data of Anthropology More Apparent than Real 62 
§ 32. Miscitation as the Basis of Criticism of the Use of Anthropological 

Data 64 

§ 33. The Presence of Criminal Traits in the Honest and in the Non- 
criminal Insane . ... . 68 

§ 34. Accumulation of Criminal Traits Necessary to Mark the Criminal . . 69 

§ 35. Counterbalancing of Criminal by Other Traits 69 

§ 36. Variable Predominances of Parents in Offspring 69 

§ 37. Criminal Traits So called do not necessarily Result in Crime ... 70 

§ 38. Influence of Circumstances in Restraining the Criminal 70 

§ 39. Possibility of Crime Existent in a Man of Criminal Traits at All Ages 71 

§ 40. Apparent Honesty in Face of Anthropological Data often deceptive 71 

§ 41. Historical and Anthropological Indetermination of Crime 73 

§ 42. Indetermination of Crime not All-inclusive 74 

§ 43. Connotation of Crime Changes; not so Criminality 75 

§ 44. The Social Environment Gives the Form to Crime which has its Base 

in the Biological Factor 76 



CONTENTS xi 



§45. "Mala Prohibita" and "Mala in Se'' 77 

§ 46. Juridical Crime and the Criminal from a Sociological Point of View 78 

§ 47. The Proper Subject of Criminal Anthropology 79 

§ 48. Sociological Definition of Crime . . ... .80 

§ 49. Criticism of this Sociological Definition of Crime; Harmless Acts held 

Criminal ... . ... 80 

§ 50. Criticism of this Sociological Definition of Crime; Inequality of 

Penalty 81 

§ 51. Eclectic Definition of Crime; Proal . 82 

§ 52. Durkheim's Definition of Crime 82 

§ 53. Biological Definition of Crime; Bahar 83 

§ 54. Sociological and Biological Bases of Crime ... 84 

§ 55. Distinction between Anti-human and Anti-social Criminality ... 85 

§ 56. The Existence of an Anthropological Criminal Type 86 

§ 57. Physiognomy most important in Determining a Criminal 87 

§ 58. Objections to the Determination of a Criminal Type 88 

§ 59. Objection based on the Alleged Development of the Thief into the 

Murderer . . . 91 

§ 60. Objection that the Anthropological is a Professional 92 

§ 61. Anthropological Criminal Class — a Restatement ..... . 95 

§ 62. Heredity and Environment 98 

§ 63. Criminal Etiology 100 

§ 64. Hypotheses as to Nature and Origin of Crime 100 

§ 65. Biological Norm or Basis of Origin and Nature of Delinquency ... 102 

§ 66. Sociological Norm as Basis of Origin and Nature of Delinquency . 103 
§ 67. Biological Abnormality as Organic or Psychic Atavism as Basis of 

Origin and Nature of Delinquency 105 

§ 68. Biological Abnormality of Epilepsy as Basis of Origin and Nature of 

Delinquency ... 106 

§ 69. Biological Abnormality of Organic or Psychic Atavism as Basis of 

Origin and Nature of Delinquency . ... 107 
§ 70. Biological Abnormality of Neurosis or Neurasthenia as Basis of 

Origin and Nature of Delinquency 108 

§ 71. Biological Abnormality or Degeneracy as Basis of Origin and Nature 

of Delinquency .... 109 

§ 72. Biological Abnormality of Defective Nutrition as Basis of Origin and 

Nature of Delinquency 110 

§ 73. Biological Abnormality of Defective Development of Inhibitive 

Centers as Basis of Origin and Nature of Delinquency . 110 
| 74. Biological Abnormality of Moral Anomaly as Basis of Origin and 

Nature of Delinquency . . 110 

§ 75. Biological Abnormalities as Basis of Origin and Nature of Delin- 
quency, — Summary .... . . Ill 

§ 76. Basis of Origin and Nature of Crime Complex . . . 115 
§ 77. Social Abnormality of Economics as Basis of Origin and Nature of 

Delinquency 118 

§ 78. Social Abnormality of Juridical Inadaptation as Basis of Origin and 

Nature of Delinquency ... . . 119 
§ 79. Social Abnormality of Complex Social Influences as Basis of Origin 

and Nature of Delinquency 119 

§ 80. Biologico-social Abnormality as Basis of Origin and Nature of 

Delinquency, 120 

§ 81. Crime is a Phenomenon of Biologico-Social Abnormality 122 



xii CONTENTS 

Chapter III 
NATURAL CLASSIFICATION OF CRIMINALS 

Precedent. Habitual and occasional criminals. Five fundamental cate- page 
gories: insane, born, habitual, occasional, and by passion. Grada- 
tion. Numerical proportions. Other classifications, Conclusions. 

§ 82. History of the Distinction of Criminal Categories prior to Lombroso 125 
§ 83. Conclusions from History of Distinctions of Criminal Categories 

prior to Lombroso . . .127 

§ 84. Applicability of Anthropological Data restricted to Certain Categories 129 

§ 85. Statistics of Criminal Relapse . . 129 

§ 86. Criminal Relapse the Rule . . 130 

§ 87. Proportion of Recidivity in Crimes against the Person 132 

§ 88. Proportion of Recidivity in Crimes against Property . . . . 133 

§ 89. Statistics of Relapse Reinforce Conclusions of Anthropology . . 133 

§ 90. Larger Percentage of Habitual Delinquency 134 

§ 91. Percentage in Habitual Delinquency between "Assizes" and "Tri- 
bunals" 136 

§ 92. Five Categories of Criminals . .... 138 

§ 93. The Criminal Insane .... ... 139 

§ 94. The Mattoide and Semi-insane Categories . . 142 

§ 95. The Born-criminal Category 144 

§ 96. The Habitual Delinquent Category 145 

§ 97. Precocity and Recidivity; Traits of the Habitual Criminal . 146 
§ 98. Two Objections to Precocity as a Mark of the Categories of Born 

and Habitual Criminals 150 

§ 99. Objection to Recidivity as a Mark of the Categories of Born and 

Habitual Criminals .... . . . . . 151 

§ 100. The Criminal through Passion Category . 152 

§ 101. The Occasional Criminal Category . . 154 

§ 102. Difference between Categories One of Degree . . 157 

§ 103. Application of Class Division of Criminals ... 158 

§ 104. Numerical Proportions of the Five Categories of Criminals . 159 

§ 105. Other Classifications of Criminals 160 

§ 106. Colajanni and Lombroso Accept the Five Classes of Delinquents 163 

§ 107. New Basis for Legal Science ... . . . 164 

§ 108. Five Classes a Natural Division . . . . . 164 

Paet II 
DATA OF CRIMINAL STATISTICS 

Chapter I 

METHODS OF COLLECTING CRIMINAL STATISTICS 

Moral and criminal statistics. History and statistics. Natural and legal 

criminality. 

§ 109. Importance of Criminal Statistics 168 

§ 110. Method of Collecting and Studying Criminal Statistics . . . 169 

§ 111. Use and Abuse of Statistics 171 

§ 112. Ethico-social Inductions from Criminal Statistics 173 

§ 113. Criminal Sociological Demands of Statistics . 174 



CONTENTS xiii 

PAqs 

§ 114. Biological Aspect of Criminal Statistics 174 

§ 115. Statistics and History 175 

§ 116. Distinction between Natural and Legal Crime 176 

Chapter II 
CIVILIZATION AND CRIME 

Relation between honest and criminal activity. Anthropological, physical, 

and social factors of crime. 

§ 117. Evolution of Crime. Pathological Incidents of Civilization . . 178 

§ 118. Evolution of Crime in Civilization .... 178 

§ 119. Evolution of Crime 180 

§ 120. Crime and Education . . 181 

§ 121. Crime and Ease of Conditions of Life .... . 181 

§122. Numerical Increase in Crime shown by Statistics . . . 182 

§ 123. Actual Increase in Crime . . 185 

§ 124. Anthropological Factors in Crime; Organic Constitution of the 

Criminals 186 

§ 125. Anthropological Factors in Crime; Psychical Constitution of the 

Criminal . . .... . 186 

§ 126. Anthropological Factors in Crime; Personal Characteristics of the 

Criminals .... . . . ... 187 

§ 127. Physical Factors in Crime . ... 187 

§ 128. Social Factors in Crime 187 

§ 129. Classifications of the Factors in Crime ... . 187 

§ 130. Ratio of Civil and Penal Justice .... 188 

§ 131. Criticism of Colajanni's Classification of Crime . 189 

§ 132. Criticism of Aramburn's Classification of Crime . . 190 

§ 133. Criticism of Tarde's Classification . 191 

§ 134. Complexity of Origin of Crime 192 

§ 135. Ratio of Productivity of Different Factors in Crime . 192 

Chapter III 
PERIODIC MOVEMENT OF CRIME 
General data on periodical movement of crime in Europe. 

§ 136. The Periodical Movement of Crime 195 

§ 137. Crime as Denounced ... . 196 

§ 138. Periodical Growth of Crime ... .... 197 

§ 139. Permanent Increase in Crime ... . 198 

§ 140. Increase of Crime; Classicism and Positivism . ... 199 

§141. Comparative Tables ... 200 

§ 142. Increase in Contraventions and Increase in More Serious Crimes . . 202 

§ 143. Increase in Population a Factor in the Increase of Crime 206 

Chapter IV 

LAW OF CRIMINAL SATURATION 

Law of criminal saturation. Slight efficiency of punishment; historical, 
statistical, and psychological proofs. 

iS § 144. Law of Criminal Saturation . 209 

§ 145. Annual Criminal Variations 209 

§ 146. Reflex and Complementary Crime 211 



xiv CONTENTS 

PAGE 

§ 147. Criminal Supersaturation 211 

§ 148. _ Criminal Supersaturation and Regularity of Crime 212 

§ 149. Criminal Supersaturation and Punishment 214 

§ 150. Legislative Repression and the Increase in Crime 216 

§ 151. Judicial Repression and the Increase in Crime 217 

§ 152. Severity and Leniency in Judicial Repression 218 

§ 153. Unpunished Crimes as a Cause of Increase in Crime 221 

§ 154. Prevention of Crime, not Punishment for Crime Needed 225 

§ 155. Three Sociological Strata of Delinquents 226 

§ 156. Punishment as a Preventative and the Three Classes of Criminals . 228 

§ 157. Prevention the Object of Criminal Laws 230 

§ 158. History of Punishment 231 

§ 159. Exceptional Penalties and Repression . . 233 

§ 160. Distinction of Fear of Punishment and Repressive Penalties . . . 236 

§ 161. Repressive Force of Penalties: a Summary 236 

§ 162. Moral Prevention of Crime ... 239 

§ 163. P unishm ent is a Negative Repressive Force 240 

Chapter V 
EQUIVALENTS FOR PUNISHMENT 

Equivalents for punishment. Examples in the economic, political, scientific, 
administrative, religious, family, and educational orders. Alcoholism. 
Vagabondage. Abandoned infancy. 

§ 164. Need of Other Means of Social Protection than Punishment . . . 242 

§ 165. Penalties. Substitutes 243 

§ 166. Penal Substitutes 246 

§ 167. Penal Substitutes. Economic Order. Freedom of Emigration . . 247 

§ 168. Penal Substitutes. Economic Order. Taxation 247 

§ 169. Penal Substitutes. Economic Order. Public Works 248 

§ 170. Penal Substitutes. Relation of Alcohol to Crime 248 

§ 171. Physical and Psycho-pathogenic Influence of Alcohol 252 

§ 172. Alcoholism and Drunkenness 253 

§ 173. Penal Substitutes. Social Order. Poverty and Fatigue 254 

§ 174. Repressive Remedies 255 

§ 175. Relation of Alcoholism and Crime. Fiscal Remedies 255 

§ 176. Relation of Alcoholism and Crime. Remedies of Regulation .... 256 

§ 177. Relation of Alcoholism and Crime. Psychological Remedies .... 257 

§ 178. Relation of Alcoholism and Crime. Therapeutic Remedies .... 257 

§ 179. Penal Substitutes. Economic Orders in General 258 

§ 180. Vagabondage and Crime 261 

§ 181. Penal Substitutes. Economic Order. Conclusion 264 

§ 182. Penal Substitutes. Political Order 264 

§ 183. Penal Substitutes. Scientific Order . 266 

§ 184. Penal Substitutes. Civil and Administrative Order ........ 267 

§ 185. Penal Substitutes. Religious Order 271 

§ 186. Penal Substitutes. Family Order 272 

§ 187. Penal Substitutes. Educational Order 272 

§ 188. Penal Substitutes. Neglected Children 274 



CONTENTS XV 

Chapter VI 

PREVENTION AND REPRESSION 

Fundamental identity of prevention and repression. The fight against 

crime and its radical transformation. pagib 

§ 189. Social Prevention more effective than Penal Laws 278 

§ 190. Inevitability of Social Friction. Crime Unavoidable 280 

§ 191. Penal Substitutes. A General Argument 281 

§ 192. The Importance of the Theory of Penal Substitutes 282 

§ 193. Prevention of Crime a Duty for the Criminologist 283 

§ 194. No Science of Criminal Prevention . 283 

§ 195. Crime is Pathological. Need of Prevention 285 

Part III 
POSITIVE THEORY OF PENAL RESPONSIBILITY 

Chapter I 

THE NEGATION OF THE FREE WILL 

Postulate of the Classical School denied by positivist physio-psychology; 
and in any event disputable in theory and dangerous in practice. The 
negation of free will. Eclectic compromise on moral liberty. 

§ 196. Problem of Penal Responsibility 288 

§ 197. Basis of the Right of Punishment 289 

§ 198. Moral Liberty 289 

§ 199. Process of Action . 290 

§ 200. Moral Liberty an Impossibility 292 

§ 201. Indivisibility of the Human Mind 295 

§ 202. No Free Will Because Will in not an Entity 296 

§ 203. Statistics Prove that There is No Free Will 297 

§ 204. No Limited Freedom of Will 297 

§ 205. Free Will is Denied by Science 298 

§ 206. Equivocal Meanings of Moral Liberty 299 

§ 207. Examples of Equivocal Meaning of Liberty 301 

§ 208. Denial of Free Will is not Fatalistic 303 

§ 209. Limited Moral Freedon; Conclusion 303 

§ 210. Limited Moral Freedom Important to Sustain Criminal Law .... 305 

§ 211. Theory of Limited Moral Freedom in Practical Jurisprudence .... 307 

Chapter II 

THE PROBLEM OF PENAL JUSTICE WITH THE DENIAL 
OF FREEWILL 

Natural defensive reaction. Present reaction. Ethnical character of retribu- 
tive justice eliminated from the defensive function. Freedom of this 
function from criteria of liberty and moral defects. 

§ 212. Penal Law Denying Moral Liberty .... 308 

§ 213. Basis of Responsibility 309 

§ 214. Need of History to determine Basis of Responsibility 310 

§ 215. Evolution of Defensive Reaction 311 

§ 216. Identity of Military and Legal Reaction 313 



xvi CONTENTS 



§ 217. Penal Lack of Recognition of Morality of Act . . 316 

§ 218. Evolutionary Phases of Law 317 

§ 219. The Last Evolutionary Phase of Law; the Social Phase . . . 318 

§ 220. Development of Penal Law toward the Defensive 320 

§ 221. Penal Function defensive and unconnected with Conditions of Moral 

Liberty 321 

Chapter III 

OBJECTIONS TO NEGATION OF FREE WILL 

The penalty (after the fact) is not a defense (before the fact). Social defense 
is not legal defense. Positive origin of law in its individual and social 
aspect. Social defense and class defense in penal law. Atavic and 
evolutionary criminality. 

§ 222. Objections to Theory of Defensive Penal Justice 322 

§ 223. (A) Objections to Theory of Defensive Penal Justice: Reparation 

not Defense . 323 

§ 224. (B) Objections to Theory of Defensive Penal Justice: Social Pro- 
tection . ... . . . 325 

§ 225. Same Subject: Conditions of Existence . ... ... 330 

§ 226. (C) Objections to Theory of Defensive Law: Influence of the 

Dominant Class . 333 

§ 227. Scientific Socialism . . . .334 

§ 228. Two Forms of Criminality . 335 

§ 229. Distinction between Two Forms of Criminality . . . 336 

Chapter IV 

PRESENT FORMS OF DEFENSIVE REACTION 

Theory of natural sanction. Physical, biological, social. Man is responsible 

for his acts, because he lives in society 

§ 230. Punishment not Based on Moral Responsibility . 339 

§ 231. Punishment Requires Physical Imputability 339 

§ 232. Legal Responsibility ... . 340 

§ 233. Objection that New Penology is Not Based on Right 341 

§ 234. Positivistic Basis of Penal Law . . 342 

§ 235. Physical, Biological, and Social Sanctions 343 

§ 236. Kinds of Social Sanctions: Coercive . . . . 344 

§ 237. The Essential Quality Common to All Forms of Social Sanction . 345 
§ 238. The Essential Quality Common to all Forms of Remunerative Social 

Sanction . .... 345 

| 239. Social Sanction and Crime . . . . 345 

§ 240. Moral Culpability must be Discarded as a Prerequisite in Crime 347 

§ 241. Social Selection . . ... 349 

§ 242. Moral Culpability an Impossible Basis for Defense of Society 351 

§ 243. Social Accountability in Place of Moral Responsibility . 352 

§ 244. Public Opinion and Social Defense 356 

§ 245. History of Treatment of Insanity . 356 

§ 246. Moral Insanity ... 359 

§ 247. Basis of Right to Punish 360 

§ 248. Imputability and Responsibility . 362 



CONTENTS xvii 

Chapter V 

ECLECTIC THEORIES OF RESPONSIBILITY 

Relative freedom of will; limited, ideal, practical. Liberty of intelligence. 
Voluntariness. Intimidability. Normality. Personal identity and 

social resemblance. State of criminality. Conclusion. page 

§ 249. Necessity and Free Will 364 

§ 250. Development of Rights . ... . . . . .... 366 

§ 251. Eclectic Theories of Punishability 366 

§ 252. Eclectic Theories of Responsibility, Limited Relation, Liberty of 

the Will ... 367 

§ 253. Eclectic Theories of Responsibility: Ideal Liberty 368 

§ 254. Eclective Theories of Responsibility: Practical Freedom 371 

§ 255. Error of Subjecting Science to State of Popular Opinion 372 

§ 256. Exigencies of the Idea of Justice 373 

§ 257. Eclectic Theories of Responsibility: Freedom of Intelligence .... 373 

§ 258. Eclectic Theories of Responsibility: Voluntarianism 378 

§ 259. Eclectic Theories of Responsibility: Intimidability 382 

§260. Eclectic Theories of Responsibility: Normality — Poletti 390 

§ 261. Criticism of the Theory of Poletti 392 

§ 262. Criticism of the Theory of Liszt 394 

§263. The Eclecticism of Tarde 395 

§ 264. Original Development of the Eclecticism of Tarde 397 

§ 265. Eclectic Theories of Responsibility: Tarde, Personal Identity . . . 401 

§ 266. Eclectic Theories of Responsibility : Social Similarity 402 

§ 267. Eclectic Theories of Responsibility: State of Criminality 404 

Chapter VI 

TWO FINAL PROBLEMS OF JUSTICE WITHOUT FREE WILL 

Forms of social sanction. Criteria of social sanction: preventive, reparatory, 

repressive, and eliminative means. 

§ 268. Insufficiency of Other Theories of Responsibility than the Positive 406 

§ 269. Application of the Fundamental Principle of Responsibility to Crime 407 

§ 270. Greater Importance of Prevention 410 

§ 271. The Relations of Criminal and Civil Law 413 

§ 272. Positive Means of Social Defense 414 

§ 273. Positive Means of Social Defense: Preventive Means 416 

§ 274. Positive Means of Social Defense: Reparative Measures 417 

§ 275. Positive Means of Social Defense: Repressive Means 419 

§ 276. Positive Means of Social Defense: Eliminative Means 419 

§ 277. Positive Means of Social Defense: Summary . 420 

Chapter VII 

THE CONDITIONS OF CRIMINALITY 

The act, the agent, and the society. The right violated. The deterrnining 
motive. The anthropological category of the delinquent. Practical 
examples. Attempts. Complicity. Classical intricacy and posi- 
tivistic justice. 

§ 278. The Criteria to determine the Form of Punishment in any Case . . 421 

§ 279. Determinative Motives of Action . . . . 423 

§ 280. Criticisms of Determinative Motives 424 



xviii CONTENTS 

PAGE 

§ 281. Determinative Motives as Applied to Insane Delinquents 426 

§ 282. Justification as a Defense . • ■ 427 

§ 283. Difficulty of Proving the Determinative Motives as » Criticism 

of Them as a Criterion . . . . .... 428 

§ 284. The Use of Determinative Motives: An Example 428 

§ 285. Criteria Applicable to an Attempt 430 

§ 286. Criteria Applicable to Complicity 431 

§ 287. Social Accountability: Conclusion 432 

Paet IV 
PRACTICAL REFORMS 

Chapter I 

INFLUENCE OF THE NEW DATA OF BIOLOGY AND CRIMI- 
NAL SOCIOLOGY ON RECENT PENAL LAWS 

Parallel penalties aggravating and extenuating circumstances. Asylums 
for the criminal insane. Special procedures for delinquent minors. 
Measures against recidivists. Reaction against short-term imprison- 
ments. 

§ 288. Influence of the New Data 436 

§ 289. Examples of Influence of New Data 438 

Chapter II 

THREE GENERAL PRINCIPLES FOR PROCEDURAL REFORM 
ACCORDING TO THE POSITIVIST SCHOOL 

Equilibrium between individual rights and social guaranties. The proper 
office of the penal sentence aside from the illusory dose measurement 
of moral responsibility. Continuity and solidarity between the dif- 
ferent practical functions of social defense. Historical reason and 
illustrations of the first principle. Exaggerations of the doubt in favor 
of the accused ("in dubio fro reo") in forms of atavistic criminality. 
Revision of the trial. Pardons and amnesties. Reparation of the 
damages. Proposals of the positivist school in the individual direc- 
tion: popular penal action, reparation of judicial mistakes, least 
quota of criminality 
§ 290. Three Great Principles of the Positive School or Procedural Reform 442 

§ 291. The Same Subject 443 

§ 292. Examples of Exaggerated Individualistic Tenets 444 

§293. Equality between Individual Rights and Social Defense — "Non- 
proven" . 446 

§ 294. Equality between Individual Rights and Protection of Society: The 

State's Right to Appeal . ... 447 

§ 295. Equality between Individual Rights and Social Protection: Pardons 448 

§ 296. First Form of Individual Criminal Action 451 

§ 297. Second Form of Individual Criminal Action 451 

§ 298. Reparation to a man unjustly convicted 452 

§ 299. Abolition of Certain Crimes 454 



CONTENTS xix 



Chapter III 



THE MACHINERY OF PENAL JUSTICE AND ITS ACTUAL 
CHARACTER 

The proper duty of a penal judgment. The preparation of the case (judicial 
police). Pleadings (accusation and defense). Trial (the judge and 
jury). The criminal clinic. Civil and criminal judges. Intelligence 

and independence of judges. Their election. Powers of the judge. paqb 

§ 300. The Characteristics of Penal Judgment 456 

§ 301. Impersonality 456 

§ 302. Characteristics of Penal Judgment: Judicial License 457 

§ 303. Characteristics of Penal Judgment; Lack of Organization 459 

§ 304. Characteristics of Penal Judgment: Their Impotence 461 

§ 305. Proper Duty of a Penal Judgment 462 

§ 306. The Phases of Evidence 461 

§ 307. Penal Process: Detection of the Criminal; Bertillonage 465 

§ 308. Penal Process: Detection of the Criminal; Sphygmography . . . 467 

§309. Penal Process: Detection of the Criminal: Conclusion 468 

§310. Penal Process: Trial 471 

§ 311. Penal Process: Public Defenders 472 

§ 312. Penal Process: The Judiciary 472 

§313. Penal Process: Scientific Capacity of Judiciary 473 

§314. Penal Process: Independence of the Judiciary 474 

§ 315. Penal Process: The Qualification of the Judiciary 476 

Chapter IV 
THE JURY 

Advantages and disadvantages of the jury as a political institution. The 
jury from the standpoint of psychology and sociology. Abolition of the 
jury for common crimes. The most urgent reforms 

§ 316. Positivistic Abolition of the Jury System 479 

§317. Arguments in Favor of the Jury System . . 479 

§ 318. The Jury System: its Advantages and Disadvantages 481 

§ 319. The Jury as a Juridical Institution 482 

§ 320. The Capital Fault of the Jury System 485 

§ 321. The Insufficiency of the Jury: Personal Capacity 485 

§ 322. The Insufficiency of the Jury: The Incoherence of its Acts .... 487 

§ 323. The Jury Considered Psychologically and Sociologically 489 

§ 324. Disadvantages of the Jury System: the Tendency of the Profes- 
sional Judge to Convict . . 490 

§ 325. Disadvantages of the Jury System: Psychologically Unfitted for 

Europe 491 

§ 326. Disadvantages of the Jury System: Not Evolutionary ...... 493 

§ 327. The Necessity of the Abolition of the Jury System in the Trial of 

Ordinary Crimes 495 



xx CONTENTS 



Chapter V 

THE "BANKRUPTCY OF THE CLASSICAL PENAL SYSTEMS" 
AND THE POSITIVIST SYSTEM OF REPRESSIVE SOCIAL 

DEFENSE 

Fundamental criteria of the defensive system. Segregation for an indeter- 
minate time with perioidc revision of sentences. Reparation of the 
damages as a function of the State. Appropriation of specific measures 
to the categories of criminals reversing the classical unity of punish- 
ment. Common characteristics of the different establishments of 

segregations. paob 

§ 328. The Bankruptcy of the Classical Penal Systems .... 498 

§ 329. Fundamental Criteria of the System of Social Defense . 502 

§ 330. (A) Segregation for an Indeterminate Period ... . . 502 

§ 331. (B) Reparation in Damages 509 

§ 332. (C) The Choice of Defensive Means for Different Categories of De- 
linquents .... . . 515 

§ 333. Prisons must be Hospitals where Delinquency is Treated . . 518 

§ 334. Prisons must not be Places of Ease . 519 

§335. . Universal Necessity of Working in Prisons 519 

Chapter VI 

PRACTICAL REFORMS 

§ 336. Insane Criminals and Asylums for the Criminal Insane . . 521 

§ 337. Asylums for the Criminal Insane. Objections. Expense . . . 522 

§ 338. The Born Criminal and Capital Punishment .... . . . 527 

§ 339. Theory that no Punishment should be Permanent . . . 533 

§ 340. Deportation for Life 534 

§ 341. Indeterminate Segregation . 537 

§ 342. The Cellular System 540 

§ 343. Outdoor Work in Farming Colonies 543 

§ 344. Classification of Habitual Criminals . 545 

§ 345. Occasional Criminals and the Abuse of Short term Sentences . . 545 

§ 346. Substitutes for Short-term Sentences 546 

§347. Substitutes for Short-term Sentences: Conditional Sentence . 547 

§ 348. Delinquents through Passion: their Relative Impunity 553 

§ 349. Summary of Practical Reform 554 

Chapter VII 
CONCLUSION 

§ 350. The Future of Penal Science and Practice 555 

§ 351. Relations between Penal Law and Criminal Sociology, and Criminal 

Sociology and Politics ggg 

§ 352. Value of Origin of Crime as a Basis of Criminology 562 

§ 353. Ultimate Significance of New Discoveries and Methods 563 

§ 354. Penal Procedure in the Future 565 

§ 355. The Penal Science of the Future 565 

INDEX 571 



EDITORIAL PREFACE TO THE PRESENT VOLUME 

BY WILLIAM W. SM1THERS 1 

The practical usefulness of this work to students of criminology 
in this country lies in its assertion and demonstration with doc- 
trinal force of the announced but undeveloped theories of Lieber, 
("Essay on Subjects of Penal Law" and "Civil Liberty"), Green 
("Crime") and Drahms ("The Criminal"). These writers re- 
vealed successive stages of the advanced thought adumbrated by 
Howard, Romilly and Jebb of England even so far as to indicate 
the turn from the crime to the criminal, but none of them ven- 
tured to declare a school or doctrine even after the pronouncements 
of the Anthropological Society founded in 1859 had started Lom- 
broso upon his anthropological investigations and flooded Europe 
with voluminous polemics. It is true that meanwhile many 
phases of criminology have been earnestly studied, accepted and 
enacted into legislative mandate. No American writer, however, 
has devoted such untiring energy to the problem as a whole as 
Gross of Austria, Tarde of France, Garofalo of Italy or Bonger 
of Holland. While these men have differed among themselves, 
they have been earnest and honest investigators and have prof- 
fered society a rational, adequate and practical substitute for the 
futile and long-tried traditional remedies against crime. Of all 
the European writers, however, none has so fully demonstrated 
the practical necessity and feasibility of blending the study of the 
criminal and the ordinary processes of administrative police and 
judicial procedure, as the man whose work is here presented to 
the American public in the English language for the first time. 

Enrico Ferhi, founder of criminal sociology, and since Lom- 

broso's death perhaps the chief representative of the Italian school 

of criminologists, was born February 25, 1856, in the little Italian 

city of San Benedetto Po, in the province of Mantua. After 

graduating from the Lyceum in Mantua, he entered the University 

of Bologna in 1874 and became a pupil of Pietro Ellero, then 

1 [Member of the Philadelphia [Bar; former Secretary of the Bureau of Com- 
parative Law of the American Bar Association; author of " Executive Clemency 
in Pennsylvania" (1909), etc., etc.] 

xxi 



jarii EDITORIAL PREFACE 

professor of Criminal Law, who was also deeply interested in 
sociological and political studies. From him Ferri derived his 
inspiration to work in criminal statistics and studies along similar 
lines. In 1878, when twenty-one years of age, he published his 
first work, "The Theory of Imputability and the Denial of Free 
Will." During 1878-9 he studied at Paris and wrote his "Studies 
of Criminality in France from 1826 to 1878," a work in criminal 
statistics, which was at once recognized as authoritative by 
French scholars. In 1879 he returned and entered the University 
of Turin, where he became a pupil of Lombroso. Through the 
influence of Ellero he was appointed Professor of Criminal Law 
in the University of Bologna in 1880. Ferri proved himself a 
born teacher; from the first his lecture rooms were crowded, and 
his popularity among students was very great. In 1882, he ac- 
cepted a call to a similar chair in the University of Siena. Here 
he completed in 1884 the first edition of his "The Homicide," in 
which he set forth, for the first time, his well-known classification 
of criminals. In the same year he also published the first edition 
of his "Criminal Sociology." 

In May, 1886, he was elected a deputy to the Italian Parlia- 
ment by the Socialist party. For a time his work as a teacher 
was interrupted by his political activities, but in spite of them he 
continued his work as a writer along lines of criminology and law. 

In 1890 he was called to the University of Pisa for the chair 
of Francesco Carrara who had been the leader of the classical 
school of criminal law in Italy. Ferri's socialist activities con- 
tinued, however, and resulted in 1893 in his being ousted from his 
chair in spite of the traditional irremovability of "ordinary" 
professors. 

In 1896 Ferri founded and became the chief editor of the So- 
cialist paper "Avanti." At the same time he took up the private 
practice of law in the City of Rome. During most of this 
period Ferri was the leader of his party in the Italian Parliament, 
where he became recognized as an orator of great power and 
ability. Meanwhile, in the private practice of law he gained a 
high reputation for ability. In 1904 he was made Professor of 
Criminal Law at the Royal University in Rome, which chair he 
has held since that time. 

In addition to the works already mentioned, Ferri has pub- 
lished the following along criminological lines: 

"I nuovi orizzonti del Diritto e della procedura penale" (1881); 



EDITORIAL PREFACE xxiii 

"La scuola positiva di diritto criminale" (1883; translated by 
Kerr, Chicago, 1906, " The Positive School of Criminology") ; 

"Polemica in difesa della Scuola criminale positiva" (1887); 

"Variations thermometriques et criminalite" (1888); 

"Delitti e delinquenti nella scienza e nella vita" (1889); 

"L'omicidio nell' Antropologia criminale," 2 vols. (1895); 

"Les criminels dans l'art et la litterature" (2d ed. Paris, 1906) ; 

"Studi sulla criminalita ed altri Saggi" (1904). 

The first Italian edition of "Criminal Sociology" appeared in 
1884 and consisted of but 160 pages, while the fifth Italian edi- 
tion of 1900 contained 1000 pages. A translation, edited by the 
Rev. W. Douglas Morrison, appeared in England in 1897; it 
contained, however, only a portion of the original work and 
omitted most of the copious notes, being based on an earlier 
edition of the original. The present translation is made from 
the French edition of 1905 (the latest) which was revised by the 
author himself. 

The distinctive contribution of Ferri to the science of criminol- 
ogy has been his insistence that crime is mainly a social phenom- 
enon, though not to be interpreted exclusively as such. He 
has sought to reconcile the physical and anthropological with 
the social elements in the phenomenon of crime. In this he 
has been highly successful. His "Criminal Sociology" marked 
an epoch both in criminology and sociology. In general, Ferri 
adheres to a doctrine of social determinism as regards crime, but 
he so interprets this doctrine, both socially and legally, as to 
avoid many of its objectionable elements. In "Modern Theories 
of Criminality" by De Quiros, translated as Vol. I of the Modern 
Criminal Science Series, will be found an appreciation of Ferri's 
place in modern criminal science. 

Ferri may be regarded as Lombroso's most distinguished pupil, 
and, in a sense, as a continuer of his work, though supplementing 
it on the sociological side and giving it a greater breadth than 
Lombroso himself showed. Ferri's work on Criminal Sociology 
may be regarded, therefore, as epoch-making, in bringing to- 
gether the anthropological studies of Lombroso and his own work 
in criminal statistics and in criminal law, resulting in the founding 
in Italy of a new school of positive criminal law, of which Ferri 
is himself the chief exponent. 

The translation of the present treatise has been delayed, be- 
cause death twice laid its imperative hand upon the enterprise. 



xxiv EDITORIAL PREFACE 

Joseph Ignatius Kelly (A.M., Ph.D., Fordham College; 
C.E., Pennsylvania Military College; LL.B., Chicago College of 
Law) who began the work, received a cosmopolitan education, 
traveled and studied in several foreign countries, and finally de- 
voted his talents to the law. His tastes and accomplishments 
drew him into the historical as well as the philosophical regions 
of the science. He planned, and had printed in some tentative 
fragments, an English translation of the Roman Digest, — of which 
no complete translation has ever been published in English. 

In 1906 he was appointed Lecturer on Roman Law in North- 
western University. In 1907 he was appointed Dean of the 
Faculty of Law of the State University of Louisiana; but after 
three years was obliged by ill health to resign, and returned to 
Chicago. Here he began the present translation, while engaging 
in the practice of international and comparative law. At this 
time, the fruits of some of his studies were published in the 
Illinois Law Review: "The Gaian Fragment" (VI, 561), "The 
Titanic Death Liability" (VII, 137). 

When the present translation was a little more than one half 
finished, Mr. Kelly died, in August, 1913; and American scholar- 
ship lost a contributor of brilliant promise. 

John Lisle (A.B., LL.B., University of Pennsylvania) next 
took up the translation. After a practical experience in legal 
affairs as counsel for the Philadelphia Legal Aid Society and 
for the Society for Organizing Charity, he had become interested 
in criminology. A study of his on Vagrancy Laws was published 
in the Journal of the American Institute of Criminal Law and 
Criminology (V, 498). At the same time his talents in foreign 
languages were employed in translations for the Committee of 
the Association of American Law Schools, in their Modern Legal 
Philosophy Series, — Miraglia's "Comparative Legal Philosophy" 
and Del Vecchio's "Formal Bases of Law." 

On the death of Mr. Kelly, the Editorial Committee of the 
Institute secured Mr. Lisle's cooperation to complete the transla- 
tion of the present treatise. Before it was completely revised 
for the press, Mr. Lisle was drowned at Atlantic City, on June 
20, 1915, while performing an act of heroism in attempting to 
save the fives of others. A more extended account of the life 
and services of this devoted scholar and publicist will be found 
in a Memorial by Wm. Draper Lewis, published in the Journal 
of the Institute (VI, 486). 



EDITORIAL PREFACE XXV 

To complete the revision for the press — a task of considerable 
extent, in view of the circumstances — the committee secured 
the skilled services of Mr. George F. Deiser (lecturer in the Law 
School of the University of Pennsylvania) and Dr. John A. Forst 
(of the Philadelphia Bar), who have kindly and faithfully re- 
vised the text with thoroughness and seen the work through the 
press. The Committee here offers to them its sincerest thanks, 
on behalf of the American Institute of Criminal Law and Crimi- 
nology, for thus enabling this important work at last to be 
brought to fulfilment. 



INTRODUCTION TO THIS VOLUME 

By CHARLES A. ELLWOOD > 

In the opinion of the writer, Ferri should be called the first 
of living criminal sociologists. And the translation of this, his 
greatest work, into English is a service for which all students of 
criminology and sociology should be grateful to the American 
Institute of Criminal Law and Criminology. 

Criminal Sociology may be regarded as a special application 
of general sociology to the problem of crime and of the treat- 
ment of the criminal. Sociology, on the other hand, is a general 
or synthetic science of the whole life of human society, — its ori- 
gin, development, organization, and functioning. Criminal So- 
ciology, therefore, comes near to being the whole of Criminology, 
both in its theoretical and in its practical aspects, so far as the 
latter aims to furnish a synthetic view of the problem of crime 
and of the treatment of the criminal as a whole. It is in this sense 
that our author, Professor Ferri, evidently understands the term 
"Criminal Sociology" as the title of the present work. 

We have a right to ask first of all, therefore, what the social 
philosophy is upon which Professor Ferri bases his Criminal So- 
ciology. The work before us is not a mere empirical study of the 
causes and conditions of crime in the social environment. It is 
rather a Criminal Sociology in the sense in which we have just 
denned that term. To discover Professor Ferri's social philoso- 
phy, however, we must turn to his other works, as well as to his 
" Criminal Sociology." His "New Horizons of Criminal Law and 
Penal Procedure," his "Socialism and Criminality," his "Socialism 
and Modern Science," 2 and his three lectures on "The Positive 
School of Criminology," 3 furnish material which gives us a fairly 
clear insight into his general sociology. We shall, accordingly, 
make use of the above works in attempting a critical estimate of 
Professor Ferri's "Criminal Sociology." 

It may be said in general that, among living writers, perhaps 

1 [Professor of Sociology in the University of Missouri. — Ed.] 

> English Translation by Kerr & Co., Chicago, 1909. *> Ibid.. 1912. 



xxviii INTRODUCTION TO THIS VOLUME 

no one approaches the sociological ideal, in the treatment of the 
problem of crime, closer than Ferri. He has been, not only a 
prolific and original thinker in the field of criminology, setting 
forth among the first a clear theory of the causation of crime, a 
workable classification of criminals, a social theory of punishment 
and responsibility, a sociological conception of criminal jurispru- 
dence, and practical suggestions as to the prevention of crime; 
but he has also, at the same time, had a synthetic view of the re- 
lation of all of these to one another and to the general philosophy 
of society. He eminently deserves, therefore, to be called a crimi- 
nal sociologist in the true sense, even though one may have to 
criticize the sociology upon which he builds his general view of the 
problem of crime. 

All this does not mean that Ferri is not to be considered a mem- 
ber of the Italian School of Criminology. To be sure, in some 
respects, he stands apart from the other members of that school, 
as broader and more synthetic in his view of the problem of crime. 
The Italian School of Criminology, it may be said by way of ex- 
planation, has, in general, over-emphasized the biological factors 
in crime. They have, accordingly, placed great stress upon the 
anthropological study of the individual criminal, and have espe- 
cially emphasized the doctrine of the "born-criminal" as forming a 
definite anatomical type. How far Ferri endorses these typical 
doctrines of the Italian School, we shall see as we proceed. It 
suffices here to say that as a pupil of Lombroso he is prepared to 
see whatever truth there may be in these doctrines. Ferri, ac- 
cordingly, is conspicuous as a defender of the Italian School and 
as a reconciler of its doctrines with seemingly conflicting facts in 
the field of criminology. 

What then is the sociological background of Ferri's crimino- 

Jogical theories? In his "Socialism and Modern Science" Ferri 
ells us that "Marx complements Darwin and Spencer, and together 
they form the great scientific trinity of the nineteenth century." 
Ferri's sociology, in other words, is the sociology of Spencer and 
Marx, modified in some slight degree by the biological doctrines 
of Darwin. Now the point of view of Spencer and Marx in so- 
ciology is materialistic and mechanistic, though they may not 
always be so consistently in their practical treatment of social 
problems. Ferri's point of view also is that of a materialistic and 
mechanistic monist, though he is not consistently such when he 
comes to the practical treatment of the problem of crime. He 



INTRODUCTION TO THIS VOLUME xxix 

feels compelled, therefore, at the outset to deny that there is any 
truth in the doctrine of free will. It may be remarked in passing 
that his treatment of this doctrine shows the same confusions 
which we find in most materialistic writers. He avoids the issue 
as to whether there is any such thing as psychic or rational de- 
termination. In places he argues that all the determining factors 
in activity are ultimately extra-personal; in other places, however, 
he seems to say that personality is a true factor in the determina- 
tion of activity, though he does not explain in any place what he 
means by personality. Hence, his whole argument regarding free 
will is, from the standpoint of philosophical criticism, confused; 
and he is certainly very far from meeting the issue involved in 
that much debated question. 

As a consequence of his denial of the doctrine of free will, Ferri 
finds no place for a doctrine of moral responsibility in any strict 
sense, but tries to make his doctrine of social accountability take 
the place of moral responsibility. A more important theoretical 
consequence, however, is that Ferri's psychology remains essen- 
tially the "passive" psychology of the English Associational School 
which was dominant during the greater part of the nineteenth 
century. According to such a doctrine of human nature, the in- 
dividual is essentially the puppet of the forces of environment and 
of physical heredity, and there is small place for the creative 
activity of the individual mind. 

In all of the above Ferri is a consistent follower of the socio- 
logical doctrines implied in Spencer's "First Principles." In the 
earliest period of his development, indeed, Ferri is almost wholly 
under the influence of Spencer's sociology. At a later period, 
however, he became a convert to the practical program of Marxian 
socialism. Now the social philosophy of Marx, while as material- 
istic as Spencer's, differs from the latter in that it emphasizes the 
great r61e played by economic factors in social evolution; whereas 
Spencer emphasized more especially the physical and biological 
factors. As is well-known, the background implied in Marx's 
practical social program was a more or less rigid "economic deter- 
minism." To this doctrine Ferri professes nominal allegiance. But 
finding it impossible to reconcile such a theory with the Lombro- 
sian emphasis upon the importance of the biological, and with the 
Spencerian doctrine of the finality of the physical factors in all evo- 
lution, Ferri in practice so modifies his economic determinism that 
there can be but little scientific objection to his use of the doctrine. 



xxx INTRODUCTION TO THIS VOLUME 

"There are still those," he says, "who would maintain the one- 
sided standpoint that the origin of crime may be traced to the so- 
cial element alone. So far as I am concerned, I have combated 
this opinion from the very inauguration of the positive school of 
criminology, and I combat it to-day. It is certainly easy enough 
to think that the entire origin of all crime is due to the unfavorable 
social conditions in which the criminal lives. But an objective, 
methodical observation demonstrates that social conditions alone 
do not suffice to explain the origin of criminality, although it is 
true that the prevalence of the influence of social conditions is an 
incontestable fact in the case of the greater number of crimes, es- 
pecially of the lesser ones. But there are crimes which cannot be 
explained by the influence of social conditions alone. If you 
regard the general condition of misery as a sole source of criminal- 
ity, then you cannot get around the difficulty that out of one thou- 
sand individuals living in misery from the day of their birth to 
that of their death, only one hundred or two hundred become crimi- 
nals, while the other nine hundred or eight hundred either sink 
into biological weakness or become harmless maniacs or commit 
suicide without perpetrating any crime. If poverty were the sole 
determining cause, one thousand out of one thousand poor ought 
to become criminals. If only two hundred become criminals 
while one hundred commit suicide, one hundred end as maniacs, 
and the other six hundred remain honest in their social condition, 
then poverty alone is not sufficient to explain criminality. We 
must add the anthropological and telluric factors." x 

Ferri concludes that "Even Socialism, which looks forward to 
a fundamental transformation of human society on the basis of 
brotherhood and social justice, cannot elevate itself to the abso- 
lute and naive faith that criminality, insanity, and suicide can ever 
fully disappear from the earth." 2 It is evident, therefore, that 
Ferri's allegiance to Marxian dogmas is nominal rather than real, 
and that it is not sufficient to greatly interfere with the accuracy 
of his scientific perceptions or the soundness of his theories. How- 
ever, in his later writings, Ferri has tended to stress to a con- 
siderable extent the importance of economic elements in the 
problem of crime. 

A consideration of the economic factor in crime conveniently 
introduces us to Ferri's whole doctrine of criminal causation. 

1 " The Positive School of Criminology," pp. 59, 60. 
' Ibid., p. 119. 



INTRODUCTION TO THIS VOLUME xxxi 

This doctrine he set forth as early as 1881 in his "Studies on Crim- 
inality in France in 1876-1878." It consists essentially of the 
recognition of three different sets of factors in crime: namely, 
those in the physical or geographical environment, those in the 
constitution of the individual, and those in the social environment. 
Ferri calls these different factors the anthropological, the physical 
or telluric, and the social. The anthropological factors include 
sex, age, race, organic and psychic constitution, especially indi- 
vidual anomalies, whether physical or mental, acquired or heredi- 
tary. The telluric factors are climate, temperature, the fertility 
of the soil, meteoric conditions, etc. The social factors comprise 
economic and civic status, profession, social rank, density of popu- 
lation, emigration, public opinion, customs and religion, industrial 
conditions, government, education, etc. In a word, Ferri finds 
that crime is a product practically of all the forces of the universe, 
though these forces manifest themselves in varying proportions 
in different crimes and criminals. To Lombroso he would give 
chief credit for the establishment of the importance of the an- 
thropologic factors, and it is especially in the born-criminal, he 
thinks, that the importance of the anthropologic factor becomes 
manifest. To writers of the socialist school he would give credit 
for calling attention to the importance of social and economic 
factors, and these are seen especially in the occasional and habitual 
criminals; while to statisticians like Quetelet he would give credit 
for the establishment of the importance of telluric factors like 
climate, seen especially in crimes of passion. 

The result of this theory of criminal causation is, as we have 
already indicated, that Ferri gives us a synthetic view of the prob- 
lem of crime which well deserves to be called sociological. His 
theory may be summed up by saying that he finds crime to be a 
biologic and social abnormality, produced in part at least by truly 
extra-social forces. There can be little objection sociologically 
to this doctrjne. If there is to be any criticism, it must be upon 
the emphasis which Ferri gives to certain factors. In the opinion 
of the writer, he over-emphasizes the importance of both the an- 
thropological and geographical elements in crime. This is due to 
the influence of Lombroso on one hand and of Spencer's material- 
ism on the other hand. Ferri fails, especially in his discussion of 
the social factors in crime, to bring out the enormous importance 
of the influence of the "subjective environment," that is, the en- 
vironment of ideas, ideals, and values which surround every indi- 



xxxii INTRODUCTION TO THIS VOLUME 

vidual from childhood up in every social group. While Ferri has 
in general a sociological viewpoint, yet he fails, on account of his 
Spencerian and Marxian bias, to give due weight to "the psychic 
factor," or to get the true viewpoint of social psychology. 

Somewhat of the same influences are to be found in Ferri's 
well-known and widely adopted classification of criminals. Ferri's 
starting point in his classification is simple enough and beyond 
criticism on psychological grounds. He first divides all criminals 
into habitual and occasional criminals. In the large class of ha- 
bitual criminals, however, he distinguishes two sub-classes: the 
insane criminal suffering from some clinical form of mental aliena- 
tion which is the primary factor in his criminal activity; and the 
born-criminal, who has a congenital predisposition for crime. In 
both of these cases the criminal habit rests upon organic conditions, 
a fact which distinguishes it very sharply from those cases in which 
the habit is purely acquired from the contagion of a vicious en- 
vironment. In the group of occasional criminals, on the other 
hand, there stands out the class of criminals whose crimes are due 
to sudden emotion or violent passion. This constitutes a class of 
emotional criminals, or criminals by passion. We have, therefore, 
the following five classes of criminals: (1) insane criminals; (2) 
born-criminals; (3) habitual criminals, or criminals from acquired 
habit in the strict sense; (4) criminals by passion; (5) occasional 
criminals who commit isolated criminal acts because they are 
led astray by the conditions of their environment. 

There can scarcely be any question but that this classification 
is based upon observed phenomena and is a workable classification 
for penological purposes. Rightly understood, as Ferri points 
out, this classification by no means precludes the complexity of 
factors causing crime in the case of each class. Thus in the case 
of the born-criminal, whom Ferri thinks to be, following Lombroso's 
later theories, the victim of a "criminal neurosis" analogous to 
the epileptic neurosis, the congenital predisposition is alone not 
sufficient to produce crime. "A man," Ferri says, "may be a 
born-criminal, that is to say, he may have some congenital degen- 
eration which predisposes him to crime, and yet he may die at the 
age of eighty without having committed any crime because he was 
fortunate enough to live in an environment which did not offer 
him any temptation to commit crime." In the same way the in- 
sane with criminal tendencies may fail of the commission of actual 
crimes. Thus Ferri's classification is a classification based upon 



INTRODUCTION TO THIS VOLUME xxxiii 

the predominant trait in each particular class of criminals. In the 
case of the born-criminal, the hereditary constitution of the indi- 
vidual, or the "criminal neurosis," is the predominant factor. In 
the case of the insane criminal, the predominant factor is mental 
disease. In the case of the criminal by passion, it is a certain in- 
nate emotional tendency, while in the habitual and occasional 
criminals the influence of the environment predominates. 

Ferri's classification of criminals is to be criticized, if at all, 
because he fails to base it upon a simple, clear psychological prin- 
ciple, and because it is not the simplest and best classification for 
the purposes of penological practice. Criminologists are now 
agreed that there are only three main types of offenders: First, 
defective criminals, whose crimes are due to inborn mental or 
nervous defects; secondly, habitual criminals, who have acquired 
criminal habits from their social surroundings; thirdly, occasional 
criminals, or "single offenders," who form no criminal habit, but 
who commit single or occasional offenses through slight defects in 
character. This classification, based upon the simple psychologi- 
cal principle of habit, has also been found to be best suited to the 
purposes of practical penology. 1 Manifestly, such a classification 
does not differ greatly from Professor Ferri's classification. Under 
the head of the "defective criminal" we should, unhesitatingly, 
place Ferri's "born-criminal" and "insane criminal," while under 
the head of "single offenders" we could place his "occasional 
criminal" and "criminal by passion." The only point of criticism 
which we would make is that Professor Ferri does not seem to 
have been perfectly clear as to the principle upon which he based 
his classification. Recent studies, not available when Professor 
Ferri first wrote, have made clearer the three main types of 
criminals. 

No small part of the value of Professor Ferri's work lies in the 
fact that he has not despised the careful discussion of remedial 
and preventive measures for dealing with crime. Especially must 
he be credited with being one of the first to emphasize the funda- 
mental importance of prevention and to discuss carefully the whole 
range of preventive measures. Herein comes what Ferri calls 
his doctrine of "penal substitutes." Educational, industrial, 
and moral reforms, he believes can easily take the place of the re- 

1 See article by the writer, on " The Classification of Criminals " in " The 
Journal of American Institute of Criminal Law and Criminology," vol. I, pp. 
536-648. 



xxxiv INTRODUCTION TO THIS VOLUME 

pressive and retributory measures which were formerly the main 
reliance of organized society in dealing with crime. In this general 
view, Ferri is in closest accord with practically all of the advanced 
sociological and criminological thinking of the present. In re- 
gard to the specific reforms which he advocates, it is only necessary 
to say that the vast majority of them would be endorsed by our 
most scientific social workers. However, in some cases, Professor 
Ferri shows the influence of the laissez-faire social philosophy 
which was current during the greater part of the nineteenth cen- 
tury and which Spencer particularly endorsed. The soundest 
sociological thought of the present does not find much validity 
in the idea that social mal-adjustment may be prevented effect- 
ively by simply letting the individual do as he pleases. In gen- 
eral, however, the preventive measures recommended by Ferri 
show sound sociological insight. 

Thus, as we said at the beginning, Ferri is entitled to rank very 
high among the sociological thinkers who have directed their at- 
tention to the problem of crime. In the opinion of the writer, 
he should be indeed called the first of living criminal sociologists. 



INTRODUCTION TO THIS VOLUME 

BY QUINCY A. MYERS 1 

Science stands constantly at attention and challenges every 
fact, every symptom, every characteristic, every variation, every 
sequence, every differentiation, every effect, in its search for causes 
and exactness. It takes nothing for granted which lacks certitude. 
When the domain of the human mind is entered, one encounters at 
once such a mass of suggestive and related facts and phenomena, 
such a correlation of conduct and mentality with respect to crime 
and its punishment and the treatment of the perpetrator, as to 
bewilder him. Few have the opportunity, and still fewer the 
ability, to view these matters in their true relations, and yet they 
lie at the very root of society. Tireless and patient investigation 
through years, such as comparison of individuals and classes of 
individuals, as to heredity, environment, congenital conditions, 
and traumatic effects, present us with rational solutions as to the 
causes of many crimes, and thereby lead to provisions for the prac- 
tical administration of criminal laws and efficient treatment of 
criminals and defectives. Such investigations deserve the greatest 
support as the most valuable aid to this complicated and most 
important aspect of social economy. 

It is daily becoming more evident that the public is becoming 
better informed and is coming to understand that the subject is 
of vital importance to the welfare of the race. The opportunities 
consequently are being multiplied, and the funds are being pro- 
vided, for these investigations and for such practical demonstra- 
tions in the penal and correctional institutions as promise present 
relief and ultimate rational procedure in the administration of the 
criminal laws, and in the correction of individual cases. The same 
scientific movement prompts due observance of insanity, inebriacy, 
feeble-mindedness and other deficiencies in their relation to the 
causation of crime. 

1 Of the Indianapolis Bar; former Chief Justice of the Supreme Court 
of Indiana, and former President of the American Institute of Criminal Law and 
Criminology. 

xxxv 



xxxvi INTRODUCTION TO THIS VOLUME 

Investigations in penology promise much and have advanced 
the science along many lines, both practical and theoretical. Art 
may bind and shackle the hand; it may become conventional, as 
is frequently disclosed in architecture and allied arts; but science 
must distinguish, especially when we come to deal with the human 
mind and the human being in his relation to the social compact and 
the obligation of that compact to him, since both involve moral, 
social and economic questions of the highest and gravest import- 
ance. The alienist, the economist, the pscychiatrist, the sociologist, 
the psychologist, psycopathist, the criminologist, the public ad- 
ministrator and the public at large are alike interested in the ultimate 
results which must flow from observations in these different fields 
of labor. 

The courts themselves, as related to the final drama in the career 
of the criminal or defective, are too engrossed with administrative 
features to be able, if they were competent, to deal justly, by which 
we mean intelligently, with each individual case. But, present 
the data and reliable information upon which to base its conclu- 
sions, and the court may, and will, deal justly with society and 
with the individual. It cannot, in the very nature of things, in our 
complex civilization, and in the face of the swift changes in our 
social order, give the attention which the individual cases ought 
to receive — for that is a work of specialization in itself — for lack 
both of time and opportunity, and this work, if done at all, as it 
must be, must be done by others. This lays special emphasis upon 
the field of work and the duty of the American Institute of Criminal 
Law and Criminology 

It has been the frequent inquiry, if not the conviction, of those 
charged with the administration of the criminal laws, whether the 
accused is not often one who requires treatment rather than punish- 
ment. If courts are to be directed by legislative enactment, it is 
important that the enactment itself be not merely legislative empiri- 
cism, but scientific deduction from reliable sources of information. 
In other words, it is not exclusively a legal science. The premises 
become totally dissimilar when we are confronted with mental 
phenomena, whether of pronounced psychosis, or weakmindedness, 
from those which obtain in the world of physical phenomena. This 
is exemplified in the modern treatment of criminals with respect to 
employment, notably with respect to the occupation of criminals on 
the public roads. The plan has been bitterly opposed for years 
on many grounds. Now it so happens that the plan has been 



INTRODUCTION TO THIS VOLUME xxxvii 

adopted in a number of the states, and the result has been so strik- 
ingly at variance with many preconceived notions, that many 
men who were opponents have come to be firm adherents of the 
system. It only demonstrates that mental attitudes may be largely 
controlled by physical conditions, and the apparent truth of yester- 
day is the contradiction of to-day by the very fact of trial and 
experimentation. 

That the era of understanding, and consequently of rational 
investigation into, the case of the individual misdemeanant and 
the criminal has set in. That we have come to the point of dis- 
tinguishing maliciousness from diseased mentality, and to recognize 
the subject as one for the specialist on many lines, is demonstrated 
by the increasing interest and the marked development of the 
allied sciences bearing upon the subject, and by the humane pro- 
vision made at public expense to permit exhaustive study by capable 
persons for ascertaining the true and just relation of the individual 
to his offense. Invaluable aid is thus given to courts and admin- 
istrative officers, with justice to the individual and society at large. 
It comes to the question of subjective treatment of the individual 
as against the purely objective question of placing offenders in jails 
or prisons. 

It is therefore both refreshing and encouraging to find in this 
field of endeavor the scientific arrangement, and the careful and 
exhaustive treatment of many of these questions, coupled with 
carefully selected data, and correlated facts, and scientific deduc- 
tions, as found in the proof sheets of Prof. Ferris' invaluable con- 
tribution to the Criminal Science Series. Its readers will find in 
the scientific arrangement and analysis of the work itself ample 
food for reflection. Those interested in the science will here 
find added inducement to further study and elaboration of these im- 
portant subjects, so closely allied to the everyday experience of all 
who have to deal with them in an administrative capacity. 



AUTHOR'S PREFACE TO THE AMERICAN EDITION 

A new American edition of my "Sociologia Criminale" affords 
me the greatest satisfaction, — not so much for the personal 
pleasure in the acquisition of a great public like that of North 
America, as for the higher reason that its appearance confirms the 
work of scientific germination, which is an inevitable phase for 
every new doctrine. 

After the first and more clamorous affirmations of the posi- 
tivist criminal school in Italy thirty years ago, there suddenly 
ensued a second phase, that of active controversy for and against 
the new theoretical and practical mode of considering crimes in 
their natural genesis and penal justice as an instrument of social 
defense against criminals. 

In Italy and in continental Europe the philosophical traditions 
in penal justice were and are so deeply rooted and so strong that 
the doctrines of the new criminal school, according to which the 
foundations of criminal justice are based on the facts of biology 
and of criminal sociology rather than on the abstract idea of law, 
were necessarily destined to arouse the most ardent enthusiasm 
as^well as the most relentless and violent opposition. But this 
noisy polemical phase was succeeded by a period of relative silence, 
both because of the exhaustion of the controversy itself, and 
because of the natural decrease of scientific production, which 
could not continue with the wonderful fertility of the first ten 
years of life of the new criminal school. 

This silent phase, which I have called one of scientific germina- 
tion, i.e. one, which instead of representing, as some superficial 
observers believed, a subsidence of the new ideas, represents rather 
their taking hold in the public mind, — as grains of wheat just 
sown seem scattered and lost, while in reality in a phase of slow 
germination they prepare for growth and development as a pro- 
ductive sprout. 

The same phenomenon occurred with respect to the classical 
school, which was heralded by Cesare Beccaria in his celebrated 
work on "Crime and Punishment," first published anonymously 
in 1764, when the social atmosphere was vibrating with the 



xl AUTHOR'S PREFACE 

humanitarian movement which fulminated the American and 
French Revolutions. The first appearance of a reformed doctrine 
of penal justice, thus launched by Cesare Beccaria, brought about 
a period of violent polemic, favorable and unfavorable, and marked 
by a great enthusiastic outburst, from the encyclopedists of 
France to the reigning sovereigns like the great Leopold of Spain 
and the Emperor Joseph II of Austria. But after that flash of 
enthusiasm, Beccaria and his doctrine were for a time almost 
forgotten by the civilized world through public indifference. Bec- 
caria died in 1794, and only after 1850 were his proposals rec- 
ognized in the penal legislation of Europe and America and 
generally accepted by public opinion. 

The doctrines of Beccaria, however, were not so profoundly 
radical as the doctrines of the positivist criminal school. They 
left penal legislation on its metaphysical foundation of "retribu- 
tive justice," whereby punishment in the form of penalty should 
be proportioned to the crime as the effect of a moral fault. Bec- 
caria did not contemplate the elimination from penal justice of 
the surviving barbarous ferocity in penalties such as corporal 
punishment, death, torture, confiscation. Yet, in spite of the 
limited range of his innovation, nearly a century elapsed before 
his ameliorating doctrine won the assent of legislators and judges 
or were approved by public opinion. 

The doctrine and proposals of the new criminal school are a 
much more profound innovation. It holds that crime is to be 
studied in its natural and social causes, because a crime is always 
the effect of an anomaly or of a pathological condition, permanent 
or transitory, in the individual and in society itself. And, on this 
account, penal justice, instead of having a mission of measuring 
the "moral fault" of the delinquent (a measure which is unalter- 
ably impossible), and of measuring a "proportionate punishment" 
(a proportion which is impossible, because, for instance, science 
and practice can have no absolute criteria by which to determine 
whether the proportionate punishment for murder should be 
death, life imprisonment, or imprisonment for a certain number 
of years), instead of this mission, penal justice can only be a 
tactical defense against the danger and the injury represented 
by crime; a kind of hygiene and clinic against the disease of crimi- 
nality, analogous to the social function of hygiene and sanitary 
clinic against cholera, typhus, diphtheria, yellow fever, or mental 
alienation. It was therefore natural that the proposals of the 



TO THE AMERICAN EDITION xli 

positivist criminal school should not be able to conquer in the 
brief space of thirty years the unanimous consent of legislators, 
of jurists, and of public opinion, if the doctrines of Beccaria 
required nearly a century. 

But since crime is above all marked by daily occurrence in social 
life and follows every civilization like a shadow, changing only 
its form and intensity according to the stages of the social evolu- 
tion, so every day the attention of the public and of the students 
(legislators, judges, lawyers, teachers) is drawn to the problem 
of criminality, particularly when some notorious crime or criminal 
trial specially excites public curiosity, either on account of the 
extraordinary circumstances of the deed or the exceptional quality 
of the victim or of the delinquent. Hence, every day the doc- 
trines and proposals of the positivist criminal school are spon- 
taneously recorded more or less effectively in the public conscience: 
as is demonstrated by the fact that, at every celebrated trial the 
daily press discloses with more or less fidelity the conclusions of 
anthropology and of criminal sociology. 

These are the natural reasons which determined that work of 
scientific germination to which I referred a moment ago. 

Another reason even more suggestive should be added to them. 
It is our experience (noted every day, in every country, on both 
sides of the ocean) that the penal laws, inspired as they still are 
by the traditional doctrines, are powerless to preserve civil society 
from the scourge of criminality. Extreme severity and extreme 
mildness of punishment have equally proven inefficacious. It is 
like the other empiric measures taken against infectious disease 
before science had discovered the precise cause In" the existence 
of pathogenic microbes. Penal justice to-day, confronted with the I 
social disease of criminality, is in the same condition as that of 
medicine and sanitary police when confronted by cholera or typhus ' 
before Pasteur and Koch had indicated the precise and positive 
cause. 

Faced by this daily bankruptcy of penal justice as a defense of 
society against crime, it is inevitable that there should be a more or 
less changed orientation of public opinion in relation to the theo- 
retical researches and the practical proposals of anthropology and 
criminal sociology. Indeed, in the countries where the practical 
phase is stronger and where the academic traditions are least 
deadening, we observe for some years back a continuous work of 
partial reforms, of penal legislation, which, while in evident con- 



xlii AUTHOR'S PREFACE 

tradiction with the philosophical premises of the traditional doc- 
trines, are nevertheless the recognition, although not confessed, 
of the new doctrines of criminology. The Anglo-Saxon countries, 
England and the United States, have thus established themselves 
in this new path. 

While the traditional doctrines of penal justice say that the 
delinquent is to be punished when he has committed the act 
while having the use of his moral liberty, intelligence, and will, 
and that therefore a madman who has committed a crime should 
be held guiltless, England has given the example of institutions 
for the criminal insane. These asylums for the criminal insane 
are naturally approved by criminal sociology; but were and are 
opposed by the traditional doctrines of penal law. Hence we see 
that in the Latin countries and even in Germany through the 
influence of the tradition of juridical philosophy, institutions for 
the criminal insane are combated in theory and hence are badly 
organized in practice. The traditional doctrine is that every crime 
should be followed by its sentence and every sentence should be 
executed. In the United States, on the contrary, the example of 
a conditional sentence has been set, together with a probation 
system for the less dangerous and the non-habitual criminals, 
and for those to whom a sentence of a few days in prison would be 
useless and injurious. 

The conditional sentence also has been approved by the new 
criminal school (especially as a form of transition to a new judicial 
order) ; while it is combated by the criminalists of the traditional 
school. Thus, for instance, in Germany the application of a con- 
ditional sentence has not yet been obtained, because it remains 
offensive to the principle of metaphysical justice. In like man- 
ner, the United States have given the example of a special court 
for juvenile offenders. This too is a blow to the traditional and 
philosophical doctrines; but it is a wise concession to practical 
utility, being in perfect theoretical accord with the doctrines of 
anthropology and of criminal sociology. The reclusion of dangerous 
criminals for an indeterminate time is a proposal of the positivist 
criminal school, since it would be as absurd to say that a murderer 
should remain in prison twenty years rather than fifteen or thirty 
as it would to say in advance that a sick person should stay in a 
hospital ten days rather than twenty or fifty. As the sick person 
is kept in the hospital just as long a time as is necessary for his 
cure, and as the insane patient remains in the asylum all of his life 



TO THE AMERICAN EDITION xliii 

unless cured and leaves it when lie is cured, so it should be with 
the delinquent, who in the circumstances of the act, in his personal 
condition, and in the conditions of the social medium, shows him- 
self unfit for a life of liberty; for him, conditional sentence, inflic- 
tion of fines, and reparation of damage are not suitable. 

Further, imprisonment for an indeterminate period (with 
necessary guarantees for individual and family rights as for the 
insane), while haughtily combated by the jurists of the classical 
and the metaphysical school, continues its conquest of the prac- 
tical common sense of legislators in America and in Europe. 

I might say of judicial police, that it is constantly making greater 
demand upon the researches of biology and criminal sociology, 
and sees in the scientific study of delinquent man the means of 
succeeding with greater certainty in the discovery of criminals. 
Mention could likewise be made of the application of experimental 
psychology to criminal procedure in testing the credibility and the 
value of oral testimony. 

All of these applications and reforms are practical. Of this, 
my work on criminal sociology offers a logical and rational demon- 
stration — not by means of the abstractions of metaphysical philos- 
ophy, but with the scientific method of observations and positive 
induction. 

A further reason why I am much gratified with this American 
edition of my book, is that its publication is due to the kindly 
initiative of my learned colleague, Professor Wigmore, of the North- 
western University School of Law in Chicago. 

The social medium of the United States, with a strong orienta- 
tion towards the practical things of life, cannot but be favorable 
to a method so practical and so demonstrable in the consideration 
of a social function so lofty and important as penal justice, — 
the protection of homes and men from criminals. And since the 
new North American progress in the living phases of individual 
and social existence tends to realize the theoretical systems of 
the thinker (and this is as characteristic of youthful peoples as 
of individuals), so I hope and augur that the American edition of 
my work will be kindly received by those representatives of 
American scientific thought who have already placed so many 
luminous beacons along the highway of modern civilization. 

Enkico Febri 
University of Rome 



LIST OF ABBREVIATIONS IN TITLES OF BOOKS 

Saggi La negazione del arbitrio libero ed altri saggi. 

Teorica del imputabilita . . Teorica dell' imputabilita e la negazione del arbitrio libero 

LIST OF ABBREVIATIONS IN TITLES OF PERIODICALS 

A. A. C Archives d'anthropologie criminelle. 

A. C. Cr. A Actes du congres d'anthropologie criminelle. 

A. P. S Archiv fiir Straf rechtswissenschaft. 

A. H. P Annales d'hygiene publique. 

A. I. I. S Annales de l'lnstitut international de Sociologie 

E. M. P Annales de la medecine psychologique. 

A. P Archivio di psichiatria e scienze penale. 

A. S Archivio di Statistica. 

A. S. R. A Atti della Societa romana d'antropologia. 

B. E Biblioteca dell' economia. 

B. I. I. S Bulletin de l'lnstitut international de Sociologie. 

B. S. A Bulletin de la Societe d'anthropologie. 

B. S. G. P Bulletin de la Societe generale des prisons. 

B. U. S. D. P.. . .Bulletin de l'Union Internationale de droit penal. 

C. R Comptes rendus au congres penitentiaire de Stockholm. 

E. N L'Ere nouvelle. 

G. M. G Giomale del ministero di Giustizia. 

J. E Journal des Economistes. 

J. M. S Journal of Mental Science. 

J. S. S Journal of Statistics of Sociology. 

J. T Journal des Tribunaux. 

M. M. L Manuale della medicina legale. 

N. R Nouvelle revue. 

R. A Revue d'anthropologie 

R. C Rivista carceraria. 

R. D. M Revue des Deux Mondes. 

R. E Rivista d'Europa. 

R. F Rivista di freniatria. 

R. F. S Rivista di filosofia scientifica. 

R. G Rivista di Giurisprudenza. 

R. I. S Revue Internationale de sociologie. 

R. P Revue philosophique. 

R. P. N Rivista penologica del Niora. 

R. R Revue des revues. 

R. S Revue scientifique. 

R. S. F Rivista sperimentale freniatria. 

S. R Scuola positiva. 

1. G. S Zeitschrift fiir das gesammte Strafrechtswissenschaft. 

xlv 



CRIMINAL SOCIOLOGY 



INTRODUCTION 

THE POSITIVE SCHOOL OP CRIMINAL LAW 

I. The classical criminal school inaugurated by Beccaria. The classical peni- 

tentiary school inaugurated by Howard. Application of the positive 
method to criminal law. As in medicine and political economy. In lieu 
of the diminution of penalties is offered the diminution of crimes, and 
instead of the abstract study of crime as a juridical phenomenon, the 
positive study of crime as a natural social phenomenon is advocated. 

II. First accusations against the positive school. The eclectics. Scientific and 

practical expansion in the new direction. 

III. Criminal Sociology. 

§ 1. Origin of Criminal Sociology — General Considerations. 
In the course of the last twenty years a new drift of ideas on 
the subject of crime and criminals has been forming in Italy, 
and is rapidly being propagated throughout the scientific world. 
Neither its adversaries, except when blinded by prejudice, nor its 
partisans, unless really inconsiderate, can ascribe its progress 
solely to either the effects of caprice or purely personal efforts. 
Whenever a new scientific movement is affirmed and propagated, 
there is in it, as in every other order of facts, a natural phenom- 
enon, determined by the historical conditions of time and place, 
which it is well to indicate at the outset; for in that way the scien- 
tific conscience of the thinker is disciplined and strengthened. 
The impressive and fruitful development of experimental philos- 
ophy since 1850, especially in the biological and psychological 
study of man, considered as one of the numberless links of the 
zoological chain, and in the positive study of human societies 
considered as natural organisms, had already formed an intellec- 
tual medium and manifested a general trend, of which the recent 
researches on the phenomena of criminality present but one par- 
ticular aspect. Beyond these general conditions of modern 
scientific thought there was in Italy the flagrant and daily con- 



2 INTRODUCTION [§ 2 

trast between doctrines of criminal law developed to the highest 
degree of metaphysical pedantry, and the frequency of crime, 
which was considerable, whether compared with that found else- 
where in Europe, or viewed in its periodical progression. It was 
natural, then, that there should arise a scientific movement 
which, by following the experimental method of studying social 
pathology in the manifestation of crime, would aim to destroy 
this variance between the theory of crimes and penalties and the 
reality of everyday facts. From these antecedents was born the 
positive school of criminal law, with the essential object of study- 
ing the natural genesis of crime, whether in the delinquent or in 
the surroundings in which he lives, in order the more appro- 
priately to apply different remedies to different causes. This 
school of positive criminal law has since been a distinct and vig- 
orous branch of general sociology, under the name of Criminal 
Sociology. This name I gave to it in 1882 in order that it might 
embrace the experimental data of anthropology, of physio- 
psychology, of psychopathology, and of criminal statistics, 
together with the means indicated by science (preventive or 
repressive) to combat the phenomena of crime. 

After these general considerations, we may now indicate more 
in detail the historical causes of this scientific movement. 

§ 2. The Classical Criminal School Inaugurated by Beccaria. 

Neither the Romans, with all their greatness in the civil law, 

nor the jurists of the Middle Ages, were capable of raising criminal 

law to the dignity of a philosophical system. Beccaria, guided 

more, it is true, by sentiment than by a strictly scientific spirit, 

first gave an extraordinary impluse to the study of crimes and 

punishments and he was followed in the philosophical study of 

the law by a host of thinkers. Beccaria summarized the ideas 

and sentiments of the philosophers and the public opinion of his 

time. 1 Among the different scientific currents, however, which 

1 See on this subject Desjardins "Les Cahiers des Etats generaux en 1789 et 
la legislation crimineUe" (Paris, 1883). In the introduction, he sketches the state 
of public opinion at that epoch and shows that it demanded the reform of the 
criminal laws. He also speaks there of the hostility and the charges of "social 
upheaval" which were then encountered by the reformers of criminal law. The 
present successors of these reformers, forgetting that they represent the revolu- 
tionaries of a century ago, have repeated exactly the same charges against the 
positivist innovators; but they have no more stopped the progress of the new ideas 
than their adversaries of former times were able to prevent the triumph of prin- 
ciples which to-day are considered orthodox. 



1 2] THE POSITIVE SCHOOL OF CRIMINAL LAW 3 

could have given birth to his immortal work, there was a pre- 
eminent one, especially in Italy, which, with a glory as brilliant 
as it was legitimate, became the classical school of criminal law. 
This school had and still has a practical object, the diminution of 
^punishment and to a large extent its suppression, thus reacting 
with noble generosity against the cruel empiricism of the Middle 
Ages. It also had and preserves a theoretical method, the "a 
priori" study of crime as an abstract juridical being. Some 
other theories denned themselves after 1800, for example, the cor- 
rectionalist school, which Rceder, among others, so energetically 
defended under its double aspect of moral and juridical reforma- 
tion. Although this school rallied ardent and convinced adepts, 
especially in Germany and Spain, and to a lesser extent in France 
and Italy, and although it also represented a generous resistance 
to the medieval systems of reclusion, still more or less perpetrated 
among us, it was short-lived as an autonomous school. Two 
concrete facts were adverse to it. The first is that under any 
penitentiary system whatever, be it harsh or mild, there are always 
numerous types of criminals whose correction is impossible or 
extremely difficult and unstable, because they are dominated by 
an abnormal organic or psychical constitution. The second is, 
that the original causes of crime have their seat not in the criminal 
alone, but to a large extent also in the physical and social medium 
which surrounds him. The reformation of the individual does 
not by itself suffice to save him from relapse unless a beginning is 
made by suppressing the external causes, in reforming the medium 
itself and especially the social organization. When the "reform of 
the individual is possible, it is obligatory and useful, even in the 
view of the positivist school, for certain categories of criminals, 
those, for example, who have yielded to temptation, or been 
carried away by passion. But as the essential foundation of a 
scientific theory the principle to-day no longer exists. The classi- 
cal school therefore remained predominant in Italy, with a few 
personal differences of opinion on certain points, by this or that 
criminologist, but on the whole unified in method and the general 
ensemble of principles and deductions. While it almost com- 
pletely attained its practical object in softening to a very great 
extent (and sometimes even unduly) the penalties fixed by law, 
in the domain of theory it gave to the scientific world after so 
many other masterpieces of Italian criminology, the unsurpassed 
work of Carrara, the "Programma," where from the "a priori" 



4 INTRODUCTION [§ 2 

principle that "crime is a juridical being, an infraction and not an 
action," there is accurately deduced with marvellous logical power 
all the principal abstract juridical consequences of which this 
principle is susceptible. 1 The glorious scientific cycle, opened by 
Beccaria, closed with Carrara and the most illustrious modern 
representatives of the classical school; and while the rising tide of 
criminality besets us and the classical works, being thumbed in 
vain, afford us only abstract juridical disquisitions on crime, we 
see in the courts that the judges, the counsel for the defense and 
for the prosecution, feel the want and the necessity for positive 
studies in the anthropology and psychology of crimes and criminals, 
which of themselves may throw some light on the course of penal 
judicial procedure. 2 If from the theory of crime we pass to prac- 
tice, that is, the infliction of punishments, we find, as I have said 
elsewhere, 3 a clearly analogous process in the history of the classi- 
cal penitentiary school If this school seems less near to its end, 
it is because it involves, beyond the ready and inexpensive con- 
structions of syllogisms, with which the treatises and codes are 
filled, the much more expensive constructions of the architects 
who build the prisons. Moreover, it has met with very limited 
application, especially in the large European States, and hence 
it has not yet disclosed all that is false in its exaggerations. But 
it is certain that what has already taken place in the historical 
evolution of the theoretical criminal school, now complete, will 
also happen, and with the same result, to the practical peniten- 
tiary school. 

1 Carrara, " Programma" (6th Ed. 1886), Gen. Part, preface I, 21-23, thus in 
effect explains his method: "The immense chain of rules (prohibitive and primi- 
tive) must lead back to one fundamental truth. We must find the formula of this 
principle and tie to it, deducing from it particular precepts. A formula ought to 
contain in itself the germ of all the truths. ... I believe that I have found 
this single sacramental formula and it seems to me that I have seen come out of it, 
one after another, the great truths of penal law. I have expressed it in saying: 
'Crime is not a being in fact but a juridical being.' It seems to me that such a propo- 
sition opens the doors for the spontaneous evolution of all of criminal law, in virtue 
of a logical and infallible order." In my preliminary discourse (University of Pisa, 
Jan., 1890), "de Cesar Beccaria a Francesco Carrara," I indicated with more 
detail the proofs of this completed and exhausted scientific evolution and of the 
historic mission of the classical criminal school. See my volume of 542 pages: 
Ferri, "Studi della Criminalita, ed altri saggi " (Turin, Bocca, 1901). 

2 For daily applications of the positivist truths in the functioning of penal 
justice, see my volume, " t>ifese penali e studi di Giurisprudenza," Turin, Bocca, 
1899. 

3 Ferri, "Lavoro e Celle dei condannati" in the volume "Studi della Crimi- 
nalita ed altri saggi" (Turin, Bocca, 1904). 



§4] THE POSITIVE SCHOOL OF CRIMINAL LAW 5 

§ 3. The Classical Penitentiary School Inaugurated by Howard. 

A few years after the great-minded initiative of Beccaria in 
Italy, virtuous John Howard began a similar movement in Eng- 
land. For this it sufficed him eloquently to depict the pitiable 
conditions of material filth and moral corruption in which most 
convicts wallowed in the various European prisons visited by 
him; and to describe with enthusiasm the first attempts at isola- 
tion in cells, inaugurated by the Abbe Franchi, at Florence (1667), 
by Pope Clement XII at Rome (prison of St. Michael, 1703), 
subsequently imitated by the Empress Maria Theresa in the 
house of correction with 140 cells at Milan (1759), and then by 
the Viscount Alain XIV in the celled prison at Ghent (1775). 
This movement carried across to America, developed there and 
reimported into Europe, became the penitentiary school, in both 
its discipline — summed up in the formula of three words, 
isolation, labor, instruction (especially religious) — and in its 
architecture, which became immovably fixed in the system that 
Bentham (inventing and presenting it to the English Parliament 
and afterwards to the French Assembly) termed "panoptic" on 
account of the radial galleries which permitted the eye of a guard 
placed at the center of the formidable human hive to watch over 
all of it. The spirit of reform was in the air in the year 1800. It 
was at this period that Valsava at Bologna, Daquin in Savoy, 
Chiarugi in Tuscany, simultaneously with Pinel in France, and 
Tuke in England, undertook the great modern reform in the 
treatment of the insane. These unfortunates, who had formerly 
been kept in irons and loaded with chains (according to the exist- 
ing philosophical ideas which made insanity, like crime, a fault of 
the individual), were thenceforward in most instances treated 
with mildness and enjoyed a relative liberty, to which lately has 
been added the wholesome hygiene of labor. There was thus a 
humanitarian impulse of reforms for the insane also which pro- 
duced the modern school of psychiatry, vivified for many years 
past by the experimental method. 

§ 4. Beccaria and Howard and Their Limitations. 

But, to return to crimes and penalties — the two classical 
schools had exactly the same starting point, the same direction, 
and the same destination. 

The school of Beccaria in the field of juridical principles, and 



6 INTRODUCTION [§ 4 

the school of Howard in that of disciplinary prison rules, both 
caused an abundant resistance to the legislative and adminis- 
trative horrors which were perpetrated from the Middle Ages 
down to the approach of the French Revolution. These common 
protests against the laws and prisons of the period were received 
with unanimous applause, and were carried in parallel directions 
by the tide of humanitarian sentiment to the point of exaggera- 
tion. The disciples of Beccaria, in studying crime in itself as an 
abstract juridical form detached from the actual world, where it 
is so deeply rooted, proposed as their aim (which they afterwards 
attained) the general diminution of the penalties prescribed by 
the codes and the suppression even of a great number of them, 
which were incompatible with the moral sense of modern peoples. 
The successors of Howard studied the prison system in and by 
itself, without concerning themselves about the world whence 
came the convict and where his victims remained. Their object 
was the betterment of prison life and they also were successful 
in accomplishing this. 

It is time however to recall what they forgot, guided and ani- 
mated as they were by sentimental aspirations which in truth are 
more effective than the counsels of calm reason. They were 
too exclusively preoccupied with the fate of the criminal after the 
commission of his crime and their attention and the solicitude of 
the philanthropic public were deflected from a much more con- 
siderable mass of unfortunates, who lead an unhappy existence in 
our midst, but who have a moral superiority over the delinquents 
in that they are honest and remain honest. The attention of 
legislators and philanthropists has hitherto been too exclusively 
directed to the individuals who by some degeneracy of their physi- 
cal or psychical organization and under the action of a corrupt 
social medium have rebelled against external conditions with a 
malevolent and criminal activity, — while this same medium, this 
same want of education and moral training, this same misery 
pressing with equal weight on so many millions of men, has not 
driven them to robbery and homicide; nay, all the temptations, 
all the sufferings breaking against a well-tempered moral sentiment 
have at most incited in a few the sad protest of suicide. It is 
time, therefore, that the humanitarian sentiment of our epoch, 
which until now has often gone astray in showing an excessive 
solicitude for delinquents, or even in protecting animals with an 
unreasonable sensibility, should return to the great highway of 



§5] THE POSITIVE SCHOOL OF CRIMINAL LAW 7 

justice and truth. In this way, existing society will be able to 
fulfill its mission. It will no longer strive by the alms of the 
monks of the Middle Ages, nor by the violent denial of the laws 
of social evolution to comfort all this misery, which in countless 
forms obscures the luster of our civilization with so many 
shadows. 

§ 5. The Positive Method. 

This is why a new movement in criminal science has been form- 
ing for some years past. With respect to anthropology it was 
begun by Lombroso, and was immediately afterwards asserted on 
behalf of juridical sociology by a person whose name is immaterial 
and who, in a work published in 1878 (which perhaps bears evi- 
dence of immaturity), "announced his intention of applying the 
positive method to the science of criminal law." The develop- 
ment of the sociological side of the new researches was empha- 
sized, and to this study the name of criminal sociology was given. 
At the same period, Garofalo was studying and developing pref- 
erentially those inductions of the new school which were more 
peculiarly legal. It is a law of the human mind that every innova- 
tion, in whatsoever class of facts, arouses the distrust of those who 
witness its first attempts. This conservative sentiment is not 
only legitimate but is necessary in the selection of ideas, pro- 
vided, of course, that it does not go so far as to adopt the strange 
illusion of wishing to obstruct every further aspiration of progress. 
These aspirations are themselves legitimate and needful to the 
welfare of society whose life is precisely the product of these two 
opposed tendencies which aim at the same end. It is in this 
sense that Spencer said that all progress accomplished is an 
obstacle to future progress: for, every man who has consecrated 
his life to the realization of any reform or amelioration whatsoever, 
naturally falls into the illusion (from which only some specially 
favored minds escape) of believing that the last word in human 
progress has been said. 

Each thinks that he has taken the last step, and the revolu- 
tionary of yesterday becomes the conservative of to-day. Thus 
it is that the person mentioned as having declared the necessity 
of renovating the criminal law has seen rain upon him charges 
of "scientific nihilism," of "neomania," and of "moral and social 
upheavals," and so on. Nevertheless that person, drawn by 
his studies into the realm of juridical research, did but collect 



8 INTRODUCTION [§ 5 

and coordinate ideas which were already broadcast in the other 
natural and psychological sciences. He only expressed a senti- 
ment ripened by a long period of incubation, and already very 
active in the mind of the community, that there was disaccord 
between a mass of juridical abstractions and the palpitating 
realities of the Courts of Assize and other tribunals. He, I 
say, continued his study and perceiving in these very contra- 
dictions a psychological phenomenon which was natural and 
therefore inevitable, he permitted his ideas spontaneously to 
•follow their evolution. Now, the idea maintained in the field 
of anthropology by Lombroso and by that same person in the 
field of legal sociology has spread with surprising rapidity, and 
both in Italy and abroad has found among jurists, naturalists, 
and sociologists an increasingly numerous and united phalanx of 
partisans. This has given it the right to declare itself hence- 
forth as a new scientific school: and this school, notwithstand- 
ing some differences of opinion (unavoidable in the observation 
of natural phenomena, and consequently such as are found in 
all the positive sciences), has nevertheless a common method and 
direction, as well as a common source of ideas and aspirations. 

This is due not so much to any special merit of its first pro- 
moters as to the fact that it needed nothing to develop and 
spread it but a candid declaration, since it was and is in the air 
that we breathe and since it was and still remains the last ex- 
pression of a painful disagreement, evident from the beginning, 
between the mass of criminal theories and practical justice. 
The impotence of punishment to repress crimes, in spite of the 
prodigality of effort and expense that it has entailed, — the 
ever increasing number of habitual criminals, — the dangerous 
and sometimes absurd contrast between facts of psychiatry and 
the mystical theories of the moral responsibility of man, — the 
arrested development or exaggeration in the forms of procedure, 
— the introduction into this superannuated procedure of new 
institutions which do not fuse with it, 1 — all this, and still other 
reasons, demanded and still demand a scientific and legislative 
remedy. Such, then, is the cause for the new course of criminal 
law. And this new study, we may observe, makes no pretension 
to destroy all that has been done hitherto in either science or 
practice: on the contrary, it shows a progressive evolution 

1 Cf. Escobeto. "II titolo per la costituzione di parte civile specie in rapporto 
ai sindacati professional! " (CittA di Castello, 1912). 



§5] THE POSITIVE SCHOOL OF CRIMINAL LAW 9 

of this very same criminal science; it seeks to bring about a 
renovation in the supreme function of penal justice that will 
render it truly humane in the highest and most accurate sense. 
Above all, we must eliminate the incomplete idea expressed by 
certain eclectic jurists, and, at first by Lombroso himself, 1 that 
the new school is only a partial union and sympathetic alliance 
between penal law and criminal anthropology. It is something 
more than that with a much broader scientific and practical scope. 
It is the application of the experimental method to the study of 
crimes and punishments, bringing new life into the narrow 
field of abstract legal technicality through the discovery of new 
facts (revealed not only by criminal anthropology but also 
by statistics, by psychology, and sociology). It represents 
really a new phase in the evolution of criminal science. 2 In 
Italy, the positive method has long been followed, since it arose 
during the Renaissance from the labors of Galileo and his associ- 
ates. The application of this method, quietly made in the differ- 
ent physical sciences, aroused a great deal of opposition when 
carried into the field of social and moral studies; and yet it is 
evident that if this method is so fruitful in some sciences, there 
is no reason why it should not be in all others. All sciences have 
a common foundation and an identical object: the study of 
nature and the discovery of her laws for the profit of humanity. 
Indeed, this is so true that, under the traditional "a priori" 
method, philosophy, as Spencer says, was only a succession of 
continual suicides, as each philosopher overturned the preceding 
system to build his own, destined in turn to be destroyed by its 
successor. With the experimental method, on the contrary, 
discoveries once made and verified stand forever, and are inde- 
structible with respect to the facts from which they have been 
drawn. While in metaphysical philosophy, there is too often 

1 Lombroso, " Ueber den Ursprung, das Wesen und die Bestrebungen der neuen 
anthropologisch. Kriminalistischen Schule in Italien," in the "Zeitschrift fur die 
ges. Strafrw.," 1881, I, 1. 

2 On this point see Fioretli, "Dernieres publications des chefs d'ecole de la 
doctrine positiviste, " in the "Rassegna Critica" (Naples, 1885), V, 2; and also 
"Polemique pour la defense de l'ecole criminelle positive," by Lombroso, Ferri, 
Garofalo, Fioretli (Bologne, 1886), pp. 215 el seq. 

In the conclusion, after having shown the principal inductions of criminal 
sociology, I shall mention more particularly the opinions of Puglia, Liszt, Gar- 
raud, and others, who think that criminal sociology should remain distinct from 
criminal law in respect to technique, serving the latter as an auxiliary or comple- 
mentary science, instead of being the broadest science of which law is only one 
chapter, — the juridical chapter. 



10 INTRODUCTION [§ 5 

absolute opposition between incompatible systems, sprung en- 
tirely from the logical phantasy of thinkers, in positive philosophy, 
there are only partial differences of personal interpretation, and the 
unity of common foundation as well as the unity of the facts ob- 
served remains. 

But we find even here a psychological law which requires man 
to preoccupy himself with sciences which are the nearest, or 
which appear to be the nearest, to his own sentiments and per- 
sonal interest, hence it was that when Galileo postulated the em- 
ployment of the positive method in the physical sciences, there 
was little protestation or distrust, except on the part of those who 
found certain discoveries to be in opposition to their beliefs or 
their academic prejudices, and the interest of their caste. But 
on the whole, so long as this method was limited to the sciences 
which do not touch man himself, like astronomy, physics, chem- 
istry, geology, botany, etc., it did not encounter much opposition. 
Later, in our own time, came Claude Bernard, who wished to 
apply this method to human physiology and to upset the old 
metaphysical imaginings, such as Vitalism. Once more murmurs 
arose but quiet was soon restored, because physiology seemed to 
have very little to do with the moral life of man. But the strife 
was indeed tumultuous when Comte in France, Spencer in Eng- 
land, Ardigo in Italy, and Wundt in Germany, sought to extend 
the positive method to the moral and psychological study of man. 
Customary and hereditary sentiments, religious beliefs, were 
thought particularly threatened by this attempt. Happily, com- 
mon opinion, religion, and science develop in very different 
spheres. It is, however, true that as the domain of science en- 
larges, the narrower becomes that of the great common opinion 
and of religion; since, with the individual, as with humanity, 
intelligence and sentiment as a general rule advance inversely. 
At least, when the development of intelligence is uppermost, it 
dominates and transforms sentiment, if it does not stifle it. 
Indeed, if one wished to establish a sort of psychological scale of 
man, from the point of view of knowledge, one might say that 
there is first present in him the common observation of natural 
phenomena, unconnected and unrelated, and this is the lower 
degree beyond which comes science, which is only the coordinated 
and systematic observation of facts. And in the highest problems 
of life which science cannot solve, faith, due to the vague intuition 
of the unknown, governs. But psychology itself has now become 



§6] THE POSITIVE SCHOOL OF CRIMINAL LAW 11 

a positive science, the world is adaptable to it, and from it the new 
generations toil one after another to develop more and more the 
new life. 

§ 6. The Positive Method and The Social Sciences. 

When it was sought subsequently to apply the same positive 
method to the social sciences, and particularly to those which 
touch most closely everyday life, — that is, political economy 
and penal law, — the suspicions and resistance grew immeasur- 
ably, because there was seen in it a threat of an economic and 
juridical upheaval of society. Now when interests believe them- 
selves in danger, they will not permit ideas peaceably to take their 
course and produce their beneficial effects. But what reason 
can there be to deny to the social and juridical sciences this ex- 
tension of the positive method, which has already rendered such 
great service in all the other orders of science? Certainly none, 
at least for him who can raise himself to a high and serene out- 
look over the scientific evolution of our epoch. In fact, at every 
step in our day we meet examples of this continual extension of 
the positive method, founded upon observation and experience, 
to every branch of human knowledge. 

Even outside of science, we witness at this moment a new 
movement in modern art, in which, always in the name of the 
method of observation, the study of truth and life is substituted 
for arbitrary romantic and academic types, and thus a progres- 
sive evolution is being accomplished which justly places the life 
of art in harmony with the rhythm of modern thought. 1 But 
to remain in the domain of science, there are other examples which 
fortify our opinion and support it on the indisputable authority 
of experience. 

It is well known that until the beginning of the nineteenth 
century, and even later, practical medicine had always followed a 
method which was, so to speak, metaphysical and abstract. 
Medicine concerned itself only with nosology; that is to say, one 
studied, described, and treated diseases as abstract entities in 
an abstract fashion. The physician gave secondary considera- 
tion to the patient and was preoccupied solely in discovering 
the affection which altered health. If, for example, he was con- 
vinced that he had to do with a fever, with erysipelas, or with 

1 Ferri, "Les criminels dans l'art." French translation (Paris, F. Alcan, 2d 
ed. 1901). 



12 INTRODUCTION [§ 7 

pleurisy, he abstracted entirely from the patient, called in his 
knowledge of nosology and fought the fever, erysipelas, or pleu- 
risy in itself, as if it were a real being. It made little difference 
whether the patient was of sanguine, lymphatic, or nervous tem- 
perament, or whether there were any antecedents, hereditary or 
personal, of dissipation or denutrition, or whether the external or 
internal cause of the organic disorder was this or that. Pleurisy 
was pleurisy, and as such it was fought. Subsequently a new 
tendency was introduced, consisting in the observation of facts. 
Then the point was reached of studying alone all the living person 
of the patient, his antecedents, habits, and organic manifesta- 
tions. By the new processes, experimental in character, such 
as ascultation, percussion, temperature tests, the analysis of 
urine, and so on, medicine banished from its science and practice 
its former abstract tendency. The morbid entities were dis- 
carded and, instead of treating the maladies, the patients were 
treated; hence, to-day, the same disease may be treated by entirely 
different means, when the circumstances and the individual 
present different conditions. It is well known that Bufalini, in 
the field of theory, and Concato, Tommasi, and others, following 
the example of German medical men, were the standard bearers 
in Italy of the positive method in use at present, as Lombroso 
was among the first to borrow from the Germans and introduce to 
Italy the experimental method in psychiatry. Formerly, mental 
diseases also had been combated in themselves, as having their 
own existence, such as mania, melancholia, or dementia, but soon, 
in spite of resistance and ridicule (always inevitable at the be- 
ginning), alienists began to understand that the insane patient 
and not the insanity was to be treated, by employing all of the 
means which properly compose the arsenal of modern psychiatry. 

§ 7. The Application of the Positive Method to Criminal Law. 
Indeed, who does not see how much analogy there is between 
this happy and useful transformation in the medical sciences and 
that which the new school represents in criminal law, which indeed 
should be a social pathology and a clinic? Criminal law, also, has 
until now consisted in the study of crimes considered as abstract 
entities. Until now the criminologist has studied robbery, homi- 
cide, and forgery, in and for themselves, as "juridical entities," — 
as abstractions. He studied them with the sole aid of abstract 
logic and sentiments suitable to an honest man, which were 



§7] THE POSITIVE SCHOOL OF CRIMINAL LAW 13 

wrongfully believed to be imputable to criminals For each 
crime (as the result of a calculation, which several of the best- 
advised criminologists proclaim a scientific impossibility) there 
has been established a punishment fixed in advance, in the same 
way that a remedy was determined in advance, strictly prescribed 
and dosed for each disease. To the classical criminologist, the 
person of the criminal is an entirely secondary element, as the 
patient formerly was to the physician: he is only a subject to 
whom theoretical formulae, theoretically conceived, are applied; 
he is an animated manikin, on the back of which the judge places 
the number of a section of the penal code, and the prisoner him- 
self becomes a number by the execution of the sentence. The 
criminologist, like the physician of the old school, was, of course, 
obliged in spite of all, to consider the transgressor, by reason of 
certain personal conditions, too evident to be neglected, which 
modified, it was claimed, the moral responsibility of the man. 
With respect to all else — organic and psychic conditions 
surrounding the delinquent, except for a small number of mani- 
fest circumstances, expressly enumerated (minority, deaf-mutism, 
insanity, intoxication, uncontrollable outbreak of passion) influ- 
ences of heredity and family, conditions of physical and social 
environment, which constitute the inseparable antecedents of the 
person of the criminal, and consequently of his acts — to these 
the criminologist remained an entire stranger. He was con- 
cerned with the crime and not with the criminal, and conducted 
himself exactly in the manner of the physicians of the past. I 
do not maintain that all this study of crime in itself, considered 
as a juridical being, has been futile; nor do I contend that medi- 
cine, even after its transformation, has not derived some advan- 
tage from the nosological studies of former days; but I do maintain 
that this abstract study of crime, considered independently of the 
person of the delinquent, does not suffice to-day. In consequence, 
one can understand the reason of this evolution in criminal science, 
wherein crime in itself assuredly continues to be studied, but only 
after first studying the criminal with the aid of all of the means 
which the positive method can properly afford us. 1 

> This is in reply to those critics, who, taking refuge in the convenient system 
of falsifying the ideas of their adversaries to obtain an easy and unimportant vic- 
tory, reproach the new school with wanting to substitute the study of the criminal 
for that of crime. We only say that before studying crime as a juridical fact, it 
should be studied as a natural and social phenomenon, and in consequence we 
must first study the person who commits crime and the medium in which he com- 



14 INTRODUCTION [§ 8 

§ 8. The Failure of Classical Criminology. 

Only ask the criminologist why, for example, according to his 
science, every year there are committed in Italy three or four 
thousand homicides, while there are less in other countries with 
greater population; or how it happens that while no year is ever 
free from homicides there are not four hundred thousand; or 
what according to his science can be the proper remedies to sup- 
press, or at least retard the increase of homicides. Ask this, I 
say, of a classical criminologist and he can make you no answer, 
because his science has not contemplated these problems, or has 
given them only an indirect response, as ready as it is unscientific. 
It advances as an implicit postulate that the commission of 
crimes depends on the free will of men to commit them or not — 
to commit them in one way or in another — or to commit them 
in greater or less numbers. This is how any further study of the 
natural causes of this social phenomenon is atrophied. The 
classical criminologist, however, is able to say when a crime is 
attempted, fails, or is accomplished — whether aggravated or 
whether there is extenuation; and this knowledge will also in the 
end be useful to us. But, in the meantime, he stands mute before 
the most urgent problems of which modern society demands a 
practical and effective solution. If it be answered that criminal 
science has given punishments as a remedy for crime, we in turn 
may observe that these punishments in every system of reclusion 
have so far fallen short of the object sought and the results hoped 
for, that we actually see again in this the most urgent necessity of 
facing what Holtzendorff, himself a classical criminologist, calls 
"the bankruptcy of the existing penal system." And it could 
not be otherwise under the "a priori" method which makes pun- 
ishment the conclusion of an abstract syllogism and not that of the 
positive study of facts. 

Until now the criminologist has closeted himself in the con- 
science of the honest man from the height of which he has 
judged and regulated the world of delinquents, starting with the 
idea that they are all men like himself. He has established 

mits it and afterwards study juridically the crime committed, not as an isolated 
being existing in itself but as an index of the organic and psychic temperament of 
its author. Thus, as positive medicine studies disease in the sick person, so the 
criminal sociologist must study crime in the criminal. See Ferri, "Uno spiritista 
del diritto penale," in "Archiva del diritto psichico," VIII, 1 and 2, and in the 
"Studi della criminalita ed altri saggi" (Turin, Bocca, 1901). 



§8] THE POSITIVE SCHOOL OF CRIMINAL LAW 15 

the "a priori" principle: man by nature tends to good, and 
if he does evil it is by ignorance or wickedness and by a free de- 
termination of his will. He logically deduces the consequence 
that the evil inclination of the will must be met with a psycho- 
logical obstacle, which, presenting a painful character on the one 
hand tends to restrain the man animated with an evil intent, 
and presenting the character of a legal sanction on the other 
hand serves to "reassert the right violated by the crime." On 
the surface the reasoning is quite logical: but it does not re- 
spond to the facts which, whether observed in prisons, insane 
asylums, or elsewhere, tell a different story; namely, that there 
are many men who have no repugnance for what honest people 
call evil or crime; who see in robbery only a trade which has its 
dangers (prison) like other professions; who look upon homicide 
not as a crime but as the exercise of a right, or at least as an un- 
important act. And we ourselves have heard such declarations 
made by convicts in prison, who would have every reason to show 
repentance, but who, far from it, proclaim boldly that, given 
their liberty, they would immediately resume a career of robbery 
or kill the witnesses who testified against them or the victim who 
escaped them. Of course, all delinquents are not of that kind. 

In any event the fact remains that men who are not insane, 
in the medical sense of the word, think and feel in a way directly 
opposed to that assumed by the criminologists who naturally feel 
and think as honest men and have no idea that one may think and 
feel otherwise. These same delinquents will tell you that to them 
punishment is simply a professional inconvenience, like a fall from 
a roof for a roofer, or the explosion of fire-damp for the miner; 
they will add that they often "get away with it" successfully; 
and conclude that even if caught and punished (which they rarely 
are, because of every hundred criminals thirty remain unknown 
and thirty others, unpunished), two months, a year, or five years 
of prison is not so great a misfortune. The facts do not confirm 
the idea which the honest man forms of imprisonment, since in his 
eyes it means both suffering and disgrace, whereas, up to the pres- 
ent time many delinquents see in it only a means of finding them- 
selves in the company of a lot of comrades and of living at the 
expense of the State. 

In practical medicine, when experience demonstrates that a 
certain remedy, formerly thought effective, proves non-effective, 
it is abandoned for others; so in like manner in the science which 



16 INTRODUCTION [§ 9 

rules the sovereign function by which society protects itself against 
crime, if the punishments hitherto in use do not attain their object, 
they should be abandoned for other remedies which shall not differ 
merely in appearance, form, or name, but which shall be less il- 
lusory, less stupid, less expensive, and finally, more humane for 
the convict as well as for society at which he strikes. What 
occurs in the actual practice is that after the commission of the 
crime, the criminal if he should be discovered (which is far from 
always being the case), is put in prison and there, usually unem- 
ployed, charges the taxpayers with a new burden to maintain 
him in an idleness which brutalizes him, ruins his health, and 
makes him less fitted for social fife. But as new and more effi- 
cient remedies can not be invented by means of abstraction and 
syllogism, they must be found by positive research, that is, by 
the new method which alone has made criminal science a true 
social and positive science. 1 

§ 9. The Positive Method in Political Economy. 

There is another very eloquent example, even more nearly 
related to the juridical sciences, which also confirms by anticipa- 
tion the opportunity and the utility of the principles which we 
would apply: it is the example offered by Political Economy. 
Adam Smith may be said to have done for political economy what 
Cesar Beccaria did for criminal law. They inaugurated two great 
and glorious scientific currents, similar in their noble spirit of 
reaction against the empiricism of the Middle Ages. Each raised 
the banner of individualism, the former in preaching free compe- 
tition, the latter in defending the rights of humanity against the 
tyranny of the State in the field of criminal law. Both of these 
classic schools conferred great blessings on humanity, but each, 
to-day, has finished its glorious course. They attained and, 
it may be, exceeded their purpose. 

Adam Smith and his school, using the "a priori" method, 
studied economic phenomena — consumption, production, and 
distribution of wealth — as abstract beings unvarying at all 
times and in all places. They formulated laws which they de- 
clared universal, absolute, and immutable. They started with 

1 I say once for all that if we call our school "positive" it is not because it fol- 
lows a philosophical system, more or less like that of Comte, but only because of 
the method (observation and experiment) which we propose to apply. 

See Schinz. " Le positivism est une methode et non un systeme," in the " Revue 
philosophique," January, 1899, p. 63. 



§9] THE POSITIVE SCHOOL OF CRIMINAL LAW 17 

one great principle: Man always seeks happiness and from 
logical deduction they derived the ultimate consequences — 
general laws. But for a number of years, at first in Germany 
and then elsewhere, a heterodox movement arose in the science 
of political economy. This gave birth to the realistic, histor- 
ical, or positive school. It, too, has had some famous repre- 
sentatives, whom the Prussian deputy Oppenheim called State 
Socialists. Cusumano twenty years ago introduced the doctrine 
in Italy with much enthusiasm. This new evolution has now 
spread everywhere, as Laveleye x and others bear witness, and has 
found complete expression in the socialistic doctrines which Marx 
had even earlier outlined with a strict and vigorous positivist 
method. Now, who does not see the positive direction of eco- 
nomic science? In it is proclaimed the necessity of regarding 
economic facts no longer in an abstract way, but as they actually 
occur, in such and such conditions of time and place, in order to 
deduce from them historical laws valuable for a given country, at 
a given period of time and not for other countries and other 
epochs. This is a direction that leads by an inexorable logic to 
positive and scientific socialism which is economic "transformism." 
Who does not see, I say, that this direction is perfectly anal- 
ogous to that which the positive school foreshadows and which 
it has already begun to apply in the penal and criminal sciences? 2 

1 Laveleye, "Le socialisme contemporain" (4th ed. Paris, 1888); Lampertico, 
"Economia dei popoli e degli stati," vol. I (Milan, 1879); Rae, "Socialismo con- 
temporaneo," Italian translation by Bertolini (2d ed. Florence, 1895), Chap. XI. 

The reproach which Durckheim in "Les regies de la methode sociologique" 
(Paris, 1895, p. 31) makes to political economy, that it has not positive realities 
but "pure conceptions of the mind," as the content and object of its studies is 
accurate in respect to the classical school of political economy. But scientific 
socialism — in the same way as this happened in the case of the positive and 
classical cri min al schools — has really applied the rule of method which Durck- 
heim rightly extends to all sociology: that is to say, we must "consider social facts 
as things"; or, to put it another way, we must consider them in their objectivity 
and in their conditions of time and place. 

2 For the inevitable necessity for sociology to reach its logical conclusion in 
socialism and on the fundamental agreement of socialism (as it was constituted by 
Marx in the first place) with the evolutionary movement of modern thought (as 
disciplined by Darwin and Spencer) see my work, "Sociologia e scienza positiva" 
(2d ed. Palermo, Sandron, 1899). See also my communication, entitled "Sociol- 
ogie et socialisme, " to the First International Congress of Sociology at Paris (1894), 
in the "Annales de l'lnstitut internationale de Sociologie" (Paris, 1895), I. p. 
157, where I concluded by giving the first expression to a statement which raised 
a great uproar more or less apparent or sincere among the neutral and undecided 
and professional sociologists but which proves itself more every day, viz.: Soci- 
ology will be socialistic or it will not exist. 



18 INTRODUCTION [§ 10 

And further, who, comparing the fact of the new tendency of 
criminology with analogous facts occuring in art and science, 
does not see that one has a new and singularly eloquent proof of 
its historical opportunity and practical utility? Again, all of 
this only confirms once more an idea solidly established in the 
history of humanity — that no phenomenon is miraculous or 
arbitrary, but that everything occurs as it should occur, since a 
fact is but the natural effect of determining causes. Conse- 
quently, if this progressive movement in criminal science is ever 
increasingly seen, in our time, it would be a strange aberration to 
impute it to the personal caprice of any individual instead of 
recognizing in it the necessary and unavoidable manifestation of 
a certain historical condition of science as the reflection of social 
life. I was, therefore, right in asserting that our school is not a 
partial union, more or less organic — a more or less transitory 
sympathetic alliance of criminal law with the anthropological and 
social sciences — but is one of the numerous and happy appli- 
cations of the positive method of the study of social facts and, in 
this regard, is an ulterior development of the classical school 
founded by Beccaria. 

§ 10. Programme of the New School 

Indeed, if the school founded by Beccaria sought and obtained 
in practice a diminution of penalties and in theory the abstract 
study of crime considered as a juridical entity, the new school in 
turn seeks a double and fruitful aim. In practice, its proposed 
object is the diminution of crimes, which always increase rather 
than diminish; and in theory, in order to secure this practical 
object it proposes the complete study of crime, not as a juridical 
abstraction, but as a human act, as a natural and social fact: 
consequently it undertakes to study not only crime in itself as a 
juridical relation, but also, and in the first place, to study him who 
commits the crime, that is, the delinquent. And as medicine 
teaches us that to discover the remedies for a disease we must 
first seek and discover the causes, so criminal science in the new 

This declaration had been preceded by another in my work "Sociologaie cri- 
minalita," 1883, on the need for empiric socialism to submit itself to the discipline 
of sociological teachings, and this is clearly demonstrated by the scientific direc- 
tion which Marx and Engels have given to socialism. 

On this agreement between science and life in socialist doctrine, see my in- 
augural discourse at l'Universite nouvelle of Brussels: "La science et la vie au 
XIX e siecle." 



§ 10] THE POSITIVE SCHOOL OF CRIMINAL LAW 19 

form which it is beginning to assume, seeks the natural causes of 
the phenomenon of social pathology which we call crime: it thus 
puts itself in the way to discover effective remedies which may 
not indeed eliminate it (because there are in nature anomalies 
that may be lessened without being capable of destruction), but 
which may repress it within certain bounds. Nor is this all. 
As we have seen the classical school rise in the name of in- 
dividualism to vindicate the rights suppressed by the State 
during the Middle Ages, 1 so the positive school now limits 
the sometimes excessive predominance of individualism and re- 
establishes the equilibrium between the social and individual 
elements. 

This characteristic of the new school of criminal law is common 
to all the other juridical and social sciences, especially political 
economy; since political economy (although it does not lack 
the intellectual courage to reach the socialistic conclusion) shows 
in the most striking manner a scientific tendency to temper an ex- 
aggerated and metaphysical individualism by the introduction of 
the social element in a juster proportion. This is fully in accord 
with the great law of action and reaction which dominates the 
physical as well as the moral world — a law by which a force, 
over-developed in a given direction, ends by inciting an inverse 
reaction, which in turn always reaches a point beyond the proper 
limit; and it is only after these opposite movements have reached 
their extremes that a mean and definite current for each historical 
movement is produced and itself becomes the origin of an uninter- 
rupted succession of rhythms of action and reaction. From this 
flows the immediate consequence that, in the order of theory, we 
accept willingly and gratefully all that has been accomplished 
thus far by the classical schools in the juridical study of crime, 
reserving to ourselves, it is needless to say, the undeniable right 
of modifying ideas which the progress of the natural sciences has 
shown to be out of harmony with the reality of facts. We ac- 
knowledge that without the glorious labors of our predecessors 
we ourselves could have made no progress. This is agreeable to 
the universal law of evolution by which, as Leibnitz said, the 

1 Puglia, " L' evolution historique et scientifique du droit et de la procedure 
penale" (Messina, 1882); Worms, "Les theories modernes de la criminalite" 
(Paris, 1814); Prins, "Causerie sur les doctrines nouvelles de droit penal " (Brus- 
sels, 1896); Marcuse, "Strafrecht und sociale Auslese," in the " Centralblatt fur 
Nervenheilkeit und Psychiatric" August, 1897; Caignard de Mailly "L'evolution 
de l'idee criminaliste au XIX e siecle" (Paris, 1898) (extrait de la Reforme Sociale). 



20 INTRODUCTION [§ 10 

present is the child of the past but father to the future. 1 Such 
being the origin and viewpoint of the positive school of criminal 
and penal law, the attacks which the birth of this scientific move- 
ment called forth from both theorists and practitioners can be 
explained only as habitual prejudices — as the repugnance which 
is ordinarily aroused by every innovation and which Lombroso 
called "Misoneism." 

It has been charged that, in the matter of penal law, we tend 
towards "complete nihilism," merely because we have said that 
the existing science often does not rest upon positive foundations, 
and hence as astronomy is derived from astrology, chemistry from 
alchemy, psychiatry from demonology, and so on — we believe 
that a body of doctrine more positive and more useful to society 
will in like manner spring from the existing penology, so illusory 
in practice. Our accusers did not perceive the signification of 
the new school; that it came to rejuvenate and vivify, through 
experimental studies, the true and imperishable part of criminal 
law, compensating by this inestimable benefit, the loss of leaves 
and branches withered by metaphysics. It is a law in nature, that 
everything progresses by degrees, and thus criminal science, like 
every living organism, proposes in its progress not the destruction 
of all that has heretofore been done in the strictly juridical field but 
seeks only to amputate the dead limbs and to stimulate the ulterior 
evolution of those germs which the criminologists have been un- 
able to develop, absorbed as they were in their historic mission, 
and too often misled by a method which was always unproductive. 

1 To be just and to show how the ideas of the positive school already existed 
not only dimly in the general conscience, but clearly expressed by a few thinkers 
and that they only awaited, in order to develop and assert themselves, favorable 
conditions of the scientific and social medium such as I have indicated above, I 
recall some observations of Gall, "Sur les fonctions du cerveau" (Paris, 1825), 
where he displayed extraordinary foresight — "Crimes cannot commit themselves; 
hence they cannot be considered as abstract beings. Crimes are produced by indi- 
viduals who act; therefore they receive their character from the nature and the condi- 
tion of these individuals and one can only understand them according to the nature 
and condition of these same individuals" (I, 358). — "Crimes have been consid- 
ered in themselves as abstractions from their author. To change the will of 
wrong-doers, it has been thought sufficient to inflict punishment on them" (I, 339). 
— " The object of legislation should be as much as the nature of man permits 
to prevent the crimes, to correct the wrong-doers, and to place society in safety 
against those who are incorrigible" (I, 339) . 

For a hundred years no advance of a single step was made beyond these fruit- 
ful ideas entertained by Gall — of them Romagnosi and Carlo Cattaneo had an 
intuition in the domain of sociology but only in our time has criminal sociology 
scientifically and practically put them in a clear light! 



§11] THE POSITIVE SCHOOL OF CRIMINAL LAW 21 

§ 11. Eclecticism. 
Since the advance of science traverses periods of action and 
reaction and since every current in a given direction after it has 
reached its maximum, induces an opposite current which by reac- 
tion reaches the opposite extreme until the resultant which lies 
between the two is established, there is, so to speak, a natural 
eclecticism. But those who are between the classical school and 
the positive school, and who have not taken sides with one or the 
other, and who have proclaimed an "alliance" between the an- 
thropological and penal sciences, do not belong to this natural 
eclecticism. As penal science has actually witnessed the complete 
development of the classical school and the beginnings of the 
positive school, eclecticism can be only "a priori" since it assumes 
to determine the resultant of two currents of which the last is 
far from having reached its full expansion : it should be, therefore, 
and in fact is, arbitrary and provisional since the resultant must 
be displaced with each further development of the new scientific 
current. Moreover, if eclecticism appears after the two currents 
have accomplished their cycle, it is perfectly futile for studious 
men to excite themselves in determining a resultant which de- 
termines itself better and with greater nicety by a purely natural 
effort. Hence, to pretend to fix this natural resultant, from now 
on, by eclectic exchanges is simply a fruitless and vain task, even 
should it not merit the ridicule of what I have called "the expec- 
tative method," wherein the positive examination of crimes and 
delinquents is actively pursued but only "provisionally" in 
respect of the dominant criminal theories, that is to say, those 
theories which everyday facts show us are not in accord with 
reality. 1 Further, in science as in life, reality goes beyond the 
idea of which it is the manifestation: everybody knows that revo- 
lutionists bring about reforms; that reformers maintain the 

1 Ferri, "Uno spiritista del diritto penale," in the "Arehiva di psichica," 
VIII, 1-2, and "Studi sulla criminalita ed altri saggi." (Bocca, Torino, 1901.) 
This judgment which I gave of eclecticism and in which many persons, it will be 
readily understood, found "a very marked bitterness," is in perfect agreement 
with that of Loria in an article on the "middle ideas" where he says that if their 
history were possible it "would be at all events only the history of mediocrity, of 
timidity and hybridism; it would be a document of human shame and humil- 
iation; while only the history of the extreme ideas could be the epic of divining 
mind, the immortal crown placed by history on the brow of humanity and finally 
the apotheosis of that thoughtful and perplexed Ahasuerus who for so many cen- 
turies has unceasingly marched across the sad regions of thought." "Rivista di 
cociologia," February, 1895, p. 107. 



22 INTRODUCTION [§ 12 

"statu quo"; and that conservatives make concessions. Hence 
it is, that in order to obtain effective reforms, it suffices in the ab- 
stract to be a reformer, but one must in reality be a revolutionary, 
i To sum up what I have said, eclecticism must be a natural re- 
sultant; and no one should be an eclectic since useful eclecticism 
operates by itself alone. And, yet, there are eclectics because 
"natura non facit saltus"; because in science as in life courageous 
and consequential souls always must associate with men of medi- 
ocrity; and because when the initiative has been taken in any 
new scientific direction, it is very easy and very convenient for 
intellectual parasites to follow the lead and assume the air of 
innovators. I will not say, as has been said of hypocrites, that 
their existence is an homage to truth. I will say, however, that 
it is an effect and recognition of new doctrines. In fact, in the 
present debate between the two criminal schools, not only the 
pure classicists make concessions (Carrara alone having remained 
irreconcilable, because he was fully aware that one stone removed 
from the metaphysical systems would bring down the whole 
edifice) but even the less ancient criminologists or neoclassicists, 
as they have been called, freely invoke a marriage of convenience 
between the old penal law and the young positive science. They 
always forget that the new school stands for a complete innova- 
tion in scientific method, and that there is no middle term; either 
one syllogizes on crime considered as an abstract juridical being 
or one studies it as a natural phenomenon. Once concede this 
innovation in method and all the rest comes irresistably, imposed 
by the observation of facts. This is so true that with our eclectics 
everything may be reduced to making the man who commits the 
crime and the natural factors of crime figure in the preliminary 
chapter, as a somnolent and conventional group of "auxiliary 
sciences" of penal law and thereafter to follow in the ruts of the 
old juridical syllogisms without demanding of these auxiliary 
sciences the facts which should serve as the basis of general induc- 
tions. This, for an example among the moderns, is the procedure 
of Liszt and Garraud in their treatises on criminal law. 1 

§ 12. The Third School. 
There has been observed in Italy the birth of a third school 
which makes claims that it is based upon these three "funda- 

1 Liszt, "Lehrbuch des deutschen Strafrechts " (8th ed. Berlin, 1897); Gar- 
raud, "Traite de droit penal francais" (Paris, 1888-94), 5 vols. 



§ 12] THE POSITIVE SCHOOL OF CRIMINAL LAW 23 

mental points; (I) respect for the personality of civil penal law, 
in its scientific renovation; (II) the causality and not the fatal- 
ity of crime and, consequently, the "exclusion of the anthropo- 
logical criminal type"; (III) social reform as the duty of the 
State, in the fight against crime. 1 

However, this school, as I unhesitatingly predicted in the 
third edition of the present work (1892), could not live and prosper 
simply because it is based on no sufficient reason. One cannot 
believe that mere disagreements of personal views are sufficient 
to make a school or a scientific movement. If such were the fact, 
instead of one classical criminal school, we would have at least a 
dozen, as we would find at least that many groups of criminologists 
with ideas differing on particular points. For example, take the 
fundamental reason for the right to punish: on this point Berner 
has distinguished as many as fifteen theories which he classifies 
as "absolute," "relative," and "mixed." 2 These personal dif- 
ferences occur even more readily in the positive theory because 
of the greater diversity in the personal observation of positive 
facts. Nor is it any the less evident because the classical school 
and the positive school each forms an organic whole characterized' 
by the unity of its method and its general conclusions. This is 
so manifest that Tarde himself, — a so-called eclectic, and a 
disguised spiritualist, as he showed more and more by his later un- 
convincing volumes on "social logic" and "universal opposition" 
after I gave a scientific diagnosis of his previous labors, — speak- 
ing of the two chiefs and the common soldiers of the " third school " 
at a time when it was still in process of gestation, paternally ad- 
vised them "not to retard themselves with useless polemics on 
whether there really is a third school unfolding itself on the fer- 
tile soil of Italy"; 3 and I, for my part added that to make a 
third school it was not enough, for example, "to attack the Michel 
Angelo statues sculptured by Lombroso and to rescratch them in 
a few places with the syllogistic file by the aid of a magnifying 
glass. 4 Aside from Fletscher's accurate remark that 6 the positive 

1 Carnevale, "Una terza scuola di diritto penale in Italia," in the "Rivista 
carceraria," July, 1891; "La nuova tendenza nelle discipline criminali," in the 
"Antologia giuridica," 1892, part 8; Almena, "Naturalismo critico e diritto 
penale" (Rome, 1892), "La scuola critica di diritto penale" (Naples, 1894). 

2 Berner, "Trattato di diritto penale, "Italian translation by Bertola (Milan, 
1887), pp. 6-31. And it is about the same in all the classical treatises on penal law. 

3 Tarde, in the "Archives d' anthropologic criminelle," 15 March, 1892. 

4 Ferri, " Intelligenza e moralita della folia." — Controversy with Sighele in 
the "Scuola positiva," Sept. 1894, p. 729. 

6 Fleischer, "The New School of Criminal Anthropology" (Washington, 1891). 



24 INTRODUCTION [§ 12 

school stands between the spiritualistic thesis (which centers the 
whole origin of crime in the mathematical point of free will) and 
the primitive thesis of sentimental socialism (which traces the 
origin of crime exclusively to suffering), — whereas the socialists 
after my work on "Socialism and Positive Science" were willing 
to concede that even were suffering once suppressed there would 
still be sporadic forms of crime due to unavoidable influences, 
pathological, traumatic, etc., — Van Hamel said of the pretended 
"middle school," which rests on the importance given to social 
factors in the genesis of crime (as if the positive criminal school 
had not placed these factors in a strong light from its beginning 
with the first edition of this work): "A separate school is not 
based on sufficient reason, because every movement will remain 
sterile which does not approach the point of departure of the 
Italian school, that is to say, the etiological study of the delinquent 
and the three orders of individual, physical, and social factors in 
crime." ' In thought and in intellectual labor there are but two 
great highways: either "a priori" deduction, or positive induc- 
tion; it being of course understood that the deductive method 
does not absolutely exclude all induction in the "a priori," and 
vice versa, since it is only a question of predominance. 

In addition to these two great highways there may be paths, 
but not a third highway. Thus the classical school has its irreg- 
ulars, as the positive school, too, has and will have them. Hence 
these three schismatic points, which should, it is claimed, justify a 
third school, are secondary or inexact. In the first place, preoc- 
cupation with the personality of the penal law is purely a scholas- 
tic question: whether penal law be called criminology or criminal 
sociology, it all turns about the study of crime as a natural and 
social phenomenon and the method and measures to be employed 
in the preservation of society from it. All else is but academic 
futility and I will discuss it in the conclusion of this work. 2 The 
word "penalty" a few hundred years ago meant compensation; 
in the classical school it means punishment and pain (and on this 
Carnevale insisted); in the positive school it means repressive 
and preventive defense. The second point is an equivocation: 
none of us speak of the fatalism of crime but always of causal or 
natural determinism; and this is so obvious that Lombroso, who 

1 Van Hamel "Der tegen Wordige Beweging op triet gebied. van het Stra- 
frecht" (Amsterdam, 1891), and in the "Scuola postiva," 1891, p 46 and 144 

2 Post. 



§ 13] THE POSITIVE SCHOOL OF CRIMINAL LAW 25 

has been oftenest accused of biological fatalism, cited the case 
of the born delinquent who, thanks to favorable surroundings, 
commits no crime. In fact, in the third volume of the last edition 
of "L'uomo delinquente" he indicates the means to prevent and 
cure the social malady which engenders crime. Finally, the third 
point is absolutely without justification if the positive school was 
the first to systematize not only the four classes of preventive 
means against crime but also the theory of social prevention 
(equivalents for penalties) by insisting on the notorious ineffi- 
ciency of punishment in the fight on crime and in proclaiming 
that social evils, as we shall see later, require social remedies. 

§ 13. The Positive Criminal School Is in Its Third Period. 
The positive criminal school is now passing through the third 
period, that which in the evolution of every new science precedes 
definitive triumph. All innovations necessarily pass through the 
same phases. At first ignored because their dawn is confused 
with the last twilight rays of the ruling traditional theories, then 
scoffed at by the profane, as is everything which startles the 
mental habits of the multitude, they seem to be smothered under 
the Olympian silence of the pontiffs of orthodox and official sci- 
ence. This is the period of their trial; since the attempted 
innovations are either incapable of life and succumb during this 
phase of popular contempt and academic disdain, or are really 
endowed with vitality and in spite of the unintelligent judgments 
of the distracted mob, or the misrepresentations of disloyal op- 
ponents, succeed in forcing themselves on the attention of the 
public and become recognized by science, through repeated proofs 
of positive studies. In their fight for existence ideas know no 
quarter. Each day, with greater ardor, they are carried from the 
limited field of schools and books to the vast and tumultuous 
amphitheater of daily life, into discussion and judicial and admin- 
istrative application. There, they must above all conquer the 
law of inertia, mental habit, and misoneism. These again, and 
more rigorously, test their scientific and practical vitality. The 
results of this conflict, however, alike in science and in life, are 
compromises, hybrid intermixtures, drifts of eclecticism, grafts 
of positive conclusions on "a priori" premises, and which often 
bring confusion and sometimes scandal into the sanctuary of the 
courts. But one clearly sees that this is only the prelude to the 
last phase where the new ideas, strengthened by the test, emerge 



26 INTRODUCTION [§ 14 

from it victorious, corrected and perfected. Founded upon that 
part of positive truth which even the traditional theories con- 
tained, they are grasped by popular thought and become the 
dominant ideas for new generations. They are, in turn, trans- 
formed into traditions, mental habits, and social institutions and 
prepare themselves for the inevitable struggles against other 
ideas which the future will bring forth, the ever new conquests 
of science over the unknown, by which humanity advances along 
the difficult and arduous road of civilization. 

§ 14. The International Congresses of Criminal Anthropology. 

The history of the successive international congresses of crim- 
inal anthropology held in late years proves most eloquently the 
triumphant vitality of the new scientific current. The second 
congress was held at Paris in 1889, and our French colleagues 
(Tarde, Lacassagne, Manouvrier, Topinard, and others) took 
advantage of it to enter into the first skirmishes with the school 
which is known abroad as the "New Italian School": it was de- 
fended by Lombroso, Ferri, Garofalo, Pugliese, Olivieri, Laschi, 
Drill, Van Hamel, Samal, Detcherew, Moleschott, and Clemence 
Royer. As the most animated discussions dealt with the famous 
"criminal type," 1 the congress unanimously approved the pro- 
posal of Garofalo and named an international commission (Lom- 
broso, Lacassagne, Benedickt, Bertillon, Manouvrier, Magnan, 
and Lemal) instructed "to make a series of comparative observa- 
tions, the results to be presented to the next congress, on at least 
a hundred living criminals and a hundred honest men of known 
personal and hereditary antecedents. This was really a positive 
means for the solution of the difficulty. But the committee never 
met, and one of its members, Manouvrier, published a memoir to 
demonstrate that such a comparison was impossible, as if the 
criminal anthropologists in Italy and elsewhere were not mak- 
ing it every day by strictly scientific methods, controlled and 
confirmed in every part. 

Just prior to the third congress, at Brussels in 1892, the 
Italian criminal anthropologists and sociologists in a letter 
signed by forty-nine of them, 2 declined to take part in the 
congress unless the data of facts which the international commis- 
sion ought to have presented, and on which it would have been 
possible to attempt a positive and decisive discussion, would be 

1 See Chap. II. post. 2 See "Scuola Positiva," May, 1892, p. 422. 



§ 14] THE POSITIVE SCHOOL OF CRIMINAL LAW 27 

produced. And their absence from this congress gave unbridled 
liberty to the most scathing and eloquent scoffings at the criminal 
type and criminal anthropology; and it was in vain that Van 
Hamel, Drill, and Mme. Tarnowski tried to stem the tide. The 
abuse continued in the newspapers and reviews of our opponents, 
who for two or three years split our heads with their triumphant 
refrain that "for the future the anthropologico-criminal school 
is dead and buried." But the school gave evidence of its move- 
ment and life, publishing volumes full of the results of experi- 
mental research, until the fifth international Congress at Geneva 
in 1896. It was opened by the President of the Swiss Confeder- 
ation with an address in which, among other significant utter- 
ances, he said to the members: "The character of your work 
requires you to be endowed with the modern spirit. If one, not 
the least illustrious among you, has advanced beyond his times, 
he becomes a herald of the future; which will be his crowning 
glory in the eyes of posterity." 1 To end the complaints of our 
opponents the Italians took part in this Congress and obtained a 
splendid triumph for the "anthropologico-criminal school." 
Among other results obtained, they put an end to a mistaken 
idea, which had existed for a short time even in the native land 
of the school, and which persisted in other countries for a much 
longer period. 2 Eor a belief had become deep-rooted (and our 
classical and eclectic adversaries did their best to foster it) that 
the fundamental conclusion of the Italian school on the criminal 
type (that is to say on what in 1880 I called "delinquente nato," 
or born criminal, a name which has been adopted in popular lan- 
guage, thus, both proving its accuracy and the infiltration of these 
ideas into the public mind) was based entirely on anatomical 
data secured from the skulls of delinquents. 

For many years some critics were really ignorant, and many 
more pretended to be ignorant, of the fact that the Italian 
school from its beginning (for instance, in the first edition of 
this book, which was published at Bologna in 1881) has studied 
crime not merely as a biological phenomenon but also as a 
social phenomenon, and that the criminal was always studied 
not merely as an individual personality but also as a social 

1 Lackenal in the "Actes du IV e Congres d' Anthropologic criminelle" (Ge- 
neva, 1897), p. 173. 

2 This was largely due to the fact that Lombroso's "L'uomo delinquente" was 
the only foreign publication of the school until 1895, which lent a certain air of 
probability to the erroneous belief. 



28 INTRODUCTION [§ 14 

personality. But, as it is more difficult to pull a nail than to 
drive it, and as those who will not hear are as badly off as 
those who are really deaf, it was as vain, after the Congress 
of Brussels as after the Congress of Paris to declare and re- 
peat that the question of a criminal type was improperly pre- 
sented and mutilated if viewed from an exclusively anatomical 
standpoint. There were brilliant debates at the Congress of 
Geneva where, by these declarations of ours (already insistently 
reiterated by Lombroso and myself), an attempt was made to 
clear the field of the obstacles artfully accumulated by our ad- 
versaries and at the same time to impress upon public attention 
the conclusions of the positive criminal school in their true light. 
Indeed, we have always maintained that as every crime was the 
resultant of three orders of natural factors (anthropological, 
physical, and social), neither the family nor social life of the de- 
linquent could explain the genesis of crime (the same opinion 
that was maintained in Italy as early as 1880 by Turati, Battaglia, 
and others), nor the anthropological conditions (that is, ana- 
tomical, physiological, and psychical) of the delinquent. But in 
every crime there intervenes the complex and decisive determin- 
ism of the anthropological constitution and the geographical and 
social medium, so that there are to be found, as I said at the 
Congress of Geneva, born criminals who are honest — in the eyes 
of the penal code. Thus, tuberculosis may not prove fatal and 
hereditary insanity may not develop if the victim has the good 
fortune to live in an environment and under circumstances which 
are exceptionally favorable. The opponents of the Italian school 
who had had the prudence to remain away from the Congress of 
Geneva, consoled and comforted themselves in the newspapers, 
like Joly (in the "Journal des Debats," 5 Sept., 1896, to which I 
replied in the number of Sept. 20) or Tarde (in the "Archives" 
de Lacassagne) by saying that the declarations of Lombroso and 
my own at that congress had belied our earlier conclusions. But 
the truth is that only the conclusions that our adversaries cun- 
ningly imputed to us were belied and unmasked. The positive 
school has followed its own evolution, since, in its first phase, when 
the biological researches of Lombroso most attracted public at- 
tention, my sociological observations and those of others occupied 
a secondary place; while in a later phase, the influence of socio- 
logical factors has been less eclipsed by the brilliancy of anthropo- 
logical proofs. This has been accurately pointed out by Florian 



§ 14] THE POSITIVE SCHOOL OF CRIMINAL LAW 29 

and Kurella. 1 But the truth is, that from the beginning of the 
positive criminal school, researches in biology and sociology have 
always formed its substance and its method. This is so obvious 
that even in the first Congress, at Rome in 1885, the programme 
of discussions was distinct in the two fundamental sections: 
criminal biology and criminal sociology; and the same is true of 
the second Congress at Paris in 1889, where one of the theses which 
I presented bore directly "On the relative value of the individual, 
physical, and social conditions which determine crime." Thus 
the first Congress at Geneva, and then afterwards in a decisive 
manner the fourth Congress at Amsterdam, in 1901, 2 definitely 
established the essential lines of the new scientific movement on 
crimes and delinquents in accordance with the inductions of the 

1 Florian," La Scuola criminale positiva in Germania" (Kurella, Baer, Naecke, 
Vargha), in the "Scuola positiva," June, 1896; Kurella, "Die Kriminal. Anthro- 
pologic und ihre neueste Entwicklung," in the "Neue Deutsche Rundschau," 
August, 1898; Gauthier, "A propos du 4 e Congres d' Anthropologic Criminelle, " 
in the "Schweizerische Zeitschrift fiir Strafrecht," 1896, p. 247. And for more 
details, E. Ferri, "II congresso d'anthropologia criminale," at Geneva, in the 
"Scuola positiva," September, 1896, in the "Revue Scientifique," Nov. 7, 1896. 
and in the " Centralblatt fiir Nervenheilkunde und Psychologie," Nov., 189G. 

2 Still, at the Congress of Amsterdam, Crocq and Gamier again raised the ques- 
tion of the born criminal and afforded me occasion to repeat for the thousandth 
time the history of this famous scientific misunderstanding. And the congress 
in the end remained convinced that for twenty years we have believed that the 
born criminal means "the man predisposed to crime, but who will not commit 
crime until his physio-psychic predisposition becomes fixed by the conditions of 
the mundane and social medium." But to prove that the deaf are no worse than 
those who will not hear and that certain persons are incorrigible, it suffices to re- 
call a. few lamentable episodes. The "Rivista penale," as after the Congress of 
Geneva (Nov., 1896), again boldly declared after the Congress of Amsterdam 
(Oct., 1901) that Criminal Anthropology was for the future dead and buried, so 
manifestly in the interval between the first and second congresses it must have 
come to life. But Gauckler showed himself even more deaf ("Revue penitentiare," 
Sept.-Dec., 1901) when he said that my declarations at Amsterdam, intended like 
those made at Geneva, to dispel the misunderstanding in the minds of persons in 
good faith, were not in agreement with the "pure Lombrosian school." I was 
then obliged, for the thousand and first time, to repeat in my account of the Con- 
gress of Amsterdam, the history that I repeat here, as in all my Italian editions. 
Nor is this all: Tarde, once again in the same "Revue penitentiare" has exhibited 
a curious but not rare phenomenon; being little advanced himself in studies of 
criminality, he thought it was criminal anthropology which stood still and said that 
it "marked time on one spot." But it suffices to run through the solid 394 
pages of the account of the labors of the Amsterdam Congress to recognize that, 
aside from unavoidable repetitions, necessary for scientific propaganda, there is 
there contained a mass of new data confirming and developing the positive induc- 
tions. This explains how the press of every country in the world spoke of this 
congress as a triumph for criminal anthropology, and how, in homage to the 
positive school, Turin, where Lombroso is professor, was chosen as the place of 
meeting for the fifth international congress. 



30 INTRODUCTION [§ 14 

Italian school, as was loyally acknowledged by Gautier, an 
impartial foreign observer of the different schools and of the 
earlier congresses. The new scientific development was not only 
asserted and broadened in the international congresses "ad hoc" 
but it found and continues to find eloquent champions in the other 
scientific congresses, such as the Anthropological Congress of Paris 
in 1878, 1 and those more recently held at Antwerp, 2 Nancy, 3 
Lemberg, 4 Toulouse, 5 Sienna, 6 Cologne, 7 Lisbon, 8 Weimar, 9 
Edinboro, 10 Chicago, 11 Dresden, 12 Rome, 13 Paris, 14 Marienbad, 16 

1 "Crimes et cerveaux de criminels," discussion by Benediht, Broca, Bordier, 
Dally Topinard, in the "Comptes rendus du congres anthropologic de Paris," 
1880, pp. 141 et seq. 

2 Benediht, "Des rapports entre la folie et la criminalite," address at the Con- 
gress of Phreniatry and Neuropathology at Antwerp, 1885; Heger, "La question 
de la criminalite au congres d'Anvers" (Brussels, 1885). 

3 De Mortillet, " Anthropologic criminelle; la peine de mort et les autres peines 
au point de vue sociologique." Report to the Association francaise pour I'avance- 
ment des sciences, Nancy, 1886. 

4 At the Congress of Polish jurists (1887) Rosenblatt discussed "psychologi- 
cal motives in crimes " ; O. Ersynnski discussed "the new anthropological school " ; 
and Butzinski discussed "imprisonment and deportation according to the new 
ideas." 

6 De Mortillet, "La Penalite au point de vue anthropologique et sociologique." 
"Report to I' Association francaise, etc." Toulouse, 1887, in the "Revue de philo- 
sophic seientifique," Jan. 1888, p. 63. 

6 "Atti del V Congresso freniatrico a Siena," 1886 (Milan, 1887), Discussion 
on moral insanity and congenital delinquency. 

7 Binzwanger, "La dottrina della fisiologia e clinica psichiatrica in rapporto 
colle dottrine penali al congresso dei naturalisti tedeschi (Cologne, 1888), in the 
"Archiva de psychiatra," IX, 637. 

8 Among the subjects discussed note these: The necessity for reforming the 
penal codes to put them in harmony with psychology, criminal anthropology, and 
mental pathology; Reforms in the different system of penalties according to the 
anthropological categories of delinquents; Imprisonment of delinquents for an 
indeterminate time (in the "Revue d' anthropologic criminelle," Jan., 1889, p. 
49). 

9 At the Congress of German medical alienists, Sept., 1891, the principal ques- 
tion was "Responsibility and Criminality"; the report was made by Pelman who 
emphasized especially the works of the positive criminal school. 

10 At the 1892 session of the "British Association for Advancement of Science," 
a special section was created for criminal anthropology. 

11 Among the many congresses which met at Chicago, in 1893, the one devoted 
to Moral and Social Reforms had a section for the prevention and repression of 
crime to which Lombroso, Ferri, and Garofalo were personally invited. 

n At the Congress of German medical alienists, Sept., 1894, there was a dis- 
cussion on Criminal Psychology between the Chairman Sommer and Doctors 
Kurella, Pelman, Nauke, and Leppmann. 

13 At the 11th "International Medical Congress" (Rome, 1894), a section of 
psychiatry, neuropathology, and criminal anthropology was presided over by 
Lombroso. There were discussions on the "Stigmata of degeneracy" (Naecke, 
Benedikt, Lombroso); on the "Brains of Criminals" (Mingazzini, Sergi, Penta, 



§14] THE POSITIVE SCHOOL OF CRIMINAL LAW 31 

New York, 1 Cassel, 2 Tunis, 3 Monaco, 4 Berne, 8 Moscow, 6 
Saratoga, 7 Paris, 8 and Turin. 9 Without mentioning other 

Kurella, Benedikt, Roncoroni); on the "Influence of sex in criminality" (Ron- 
coroni); on the "Anomalies in the internal organs of degenerates" (Motta, 
Lombroso, Tonnini, Benedikt); on "Criminality and the economic factor" 
(Fornasari, Lombroso, Ferri); on the "Characteristics of delinquent mur- 
derers" (Ferri, Lombroso, Naecke, Kurella, Benedikt, Zuccarelli, Taverni); on 
the "Visual Field of Degenerates" (Ottolenghi) ; and on the "Clinical Diag- 
nosis of a born-criminal" (Lombroso). See "Atti del XI Cong. Med. intern.," 
Rome, 1895, vol. IV. 

14 At the 1st Congress of the International Institute of Sociology (1894), 
there was a paper on "Justice and Darwinism," by Notricow and one on "Sociol- 
ogy and Penal Law," by Dorado Montero; at the 2d Congress there was a dis- 
cussion on "Crime as a Social Phenomenon" (Toennies, Ferri, Garofalo, Tavares, 
de Madeiros, Puglia); and at the 5th Congress (1897), Dorado Montero, and Pu- 
glia spoke on "Penal Justice of the Future." See "Annales de l'lnstitut inter- 
national de Sociologie," Paris, I, 1895; II, 1896; IV, 1898. 

16 In the session of 1895 of the German medical alienists, Pelman developed 
the subject " Science and Crime" according to the ideas of the positive school. 

1 In the Medico-Legal Congress of 1895 there was a section of "Criminal 
Sociology," and there were discussions on "Homicide-suicide" (Boehm, Bach), 
on the "Etiology of Criminality" (Brower, Havelock Ellis); on "Sexual 
Perversion and Criminality" (Lee Howard); and on "Indeterminate sentences 
for born criminals" (Gordon, Battle). At the meeting at Chicago (1896) there 
were discussions on the "Reform of Penal Justice" (Austin, chairman); on the 
"Habitual delinquent" (MacCaughry) ; and on the "Treatment of habitual 
delinquents" (Pinkerton, Elliott). 

2 At the Anthropological Congress of Cassel (Aug. 1895) Buschau read a 
report on the " Gegenwartige Standpunkt der Kriminal Anthropologic." 

3 At the Congress of the Association franchise pour le progres des sciences in 
April, 1896, the "Influence of contact of two races and different civilizations on 
criminality" was discussed. 

4 At the 3d International Congress of Psychology (1896) there was a dis- 
cussion on the "Relations of Psychology and Criminal Law." 

6 The meeting of Swiss jurists (1896) had the Penal law for its theme: "In 
what way should the Swiss Penal Code treat habitual criminals?" 

6 At the Twelfth International Congress of Medicine, Aug., 1898, there was 
a discussion on the "Existence of Criminality in the Sense Understood by the 

•School of Lombroso," and that savant held an appreciated conference on the new 
conquests of psychiatry and criminal sociology. 

7 At the meeting of American Society of Social Sciences, Sept., 1897, Dr. 
Wey, of the Elmira Reformatory, spoke on the "Crimes of Minors," and Round 
treated the suggestive subject: "When shall we be able to Abolish Prisons?" 

8 At the meeting of the Association pour l'avancement des sciences (Paris, 
Sept., 1898) there was a discussion on the causes of the "Continual Increase of 
Crime and Suicide," on the "Relation between Alcoholism and Criminality," 
and on "Means Suggested for the Betterment of Convict Minors." 

9 At the 1st Italian Congress of Legal Medicine held at Turin (Oct., 1898) by 
the Italian Association of Legal Medicine (part of its programme being " to promote 
congresses which, in studying the multiple factors of crime, shall have especially 
in view the moral improvement of the social classes"), there was also a sect on 
of "Criminal Anthropology and Criminal Sociology," where there were discussions 
on "Murders committed through affection" (Tamburini); on "brigands, 



32 INTRODUCTION [§ 14 

researches in criminal anthropology made by the anthropological 
societies already in existence, such as the anthropological inquiry 
in the Belgium prisons l and the studies of skulls and brains of 
criminals by the societies of Lyons, Paris, etc., — there were also 
founded at Buenos Aires, 2 Petrograd, 8 Rio de Janeiro (1892), 
and St. Paul (1893) special anthropological criminal societies. 
In South Australia a society was started, evidently in accord with 
our theories of criminology (1897), which seeks to effect the 
abolition of capital punishment, inaugurate the practice of inde- 
terminate sentences, and institutions similar to the Elmira Refor- 
matory, 4 — an institution which it is to be hoped will finally be 
reproduced in Italy. Let us note also, among the museums due ■ 
to private initiative, those established respectively by Lombroso 
at Turin, by Tenchini at Parma, by Ottolenghi at Siena, by 
Frigerio at Alexandria, 6 by Zuccarelli at Naples (with the school 
of criminal anthropology), by Mace 6 at Paris, by Lacassagne at 
Lyons, and that "central museum of criminal anthropology" 
which the first congress of criminal anthropology at Rome (1885) 
proposed, and which Beltrani Scalia, director general of prisons, 
organized a number of years ago. In fact, anatomists were com- 
missioned to perform autopsies on the bodies of prisoners to 
gather craniological and anatomico-pathological data and thus 
prepare magnificent scientific material. Unfortunately, as usually 
happens in Italy, this excellent initiative brought no results in 

(Penta); on "the criminal life at Rome" (Niceford); on "tattooing among 
minora undergoing correction" (Ottolenghi and de Blasio); on "latent delin- 
quency" (Pinsero); on the "transformation of the prison into an agricultural 
colony" (Eula), etc. 

1 "Bulletin de la Societe d' Anthropologic de Bruxelles," discussion of a proj- 
ect for anthropological investigations on delinquents by Warnoys, Prins, Albrecht, 
Spehl, Heger, HouzS, etc., 1885, II, 202; III, 3, p. 49; Ramlot and Warnots, "Sur 
quelques resultats de l'enqu§te de la prison cellulaire de Louvain," ibid., Ill, 276 
and 321. 

2 Through the initiative of Drago, there was instituted, in 1888, a "Societad 
de antropologia juridica de Buenos Aires" to "study the person of the delinquent, 
indicate the dangers arising from him and the degree of his responsibility, in 
promoting, at the same time, the gradual and progressive reform of the penal law 
according to the principles of the new school." ("Archives de psychologie," 1888, 
IX, 335.) 

3 A Russian Society of Anthropology was founded in February, 1888, which 
has placed criminal man among its subjects of study. "Bulletin de la Society des 
prisons" (Paris, 1888). 

* In the "Rivista carceraria," Oct., 1887, p. 622. 
6 See "Scuola positiva," Feb., 1893, p. 188. 
6 MacS, Mon musee criminel " (Paris, 1890). 



§ 16] THE POSITIVE SCHOOL OF CRIMINAL LAW 33 

official spheres, 1 although abroad, the rich collections of criminal 
photographs not only aided the police but served scientific re- 
search, as in Germany for instance, and even in Russia. Later, 
museums of criminal anthropology were begun: thus at Brussels 
under the ministry of Begerenz; at Gratz by the penal tribunal; 2 
at Puebla by the State government; and finally at Lausanne by 
Professor Alfred Niceforo, who was brought there from Italy. 

§ 15. The International Union of Criminal Law. 
The positive criminal school with its tendency to seek prac- 
tical applications, has also recently declared itself in another 
fashion by the International Union of Criminal Law, founded 
in 1889 by Liszt, Prins, and Van Hamel, which has now many 
hundreds of adherents. Unfortunately, notwithstanding the 
radically logical tendencies of Van Hamel, the organization lies 
befogged in eclecticism, exemplified particularly by Liszt and 
Prins, with the result that in the annual congresses the discussions 
and proposals have become less and less heterodox and radical: 
thus once more bearing witness of the hopeless sterility of "mid- 
dle" ideas. In any event, as Frassati has said, "the origin of 
the International Union of Criminal Law 3 is incontestably due 
to the new school" so also, according to the statements of Liszt 
and Garraud, "the Italian school must be given the credit, denied 
it by some prejudiced minds, of having given a new aspect to 
criminal and penal law." 4 

§ 16. Practical Applications of the Positive School. 

The new ideas have not been confined to purely scientific 
spheres: they have already begun to find more or less direct 
judicial recognition and are dominant in expert medico-legal 
science. Among the applications made by judicial criminal an- 
thropology, one calls to mind the Bertillon method, which, adding 

1 The Congress of Legal Medicine at Turin (Oct., 1898) approved the pro- 
posal of Eula on the "Central Museum of Criminal Anthropology." 

2 Gross, "Das Kriminal Museum in Graz," in the "Zeitschrift fiir die ge- 
sammte Strafrechtswissenschaft, XVI, 1894, and in the "Scuola positiva," March, 
1896, p. 191. 

3 Frassati, "La nuova scuola penale in Italia ed all'estero" (Turin, 1891), p. 
477; Stoos, Liszt, Lilienthal, "Die Internationale Kriminalistische Vereinigung 
und ihre Zielpunkte," in the "Zeitschrift fiir die gesammte Strafrechtswissen- 
schaft" 1894, pp. 611 and 686. 

4 Liszt, "Lehrbuch des Deutschen Strafrechts," VIII ed., Berlin, 1897, pp. 
50; Garraud in the "Revue penitentiaire," July, 1897, p. 1169. 



34 INTRODUCTION [§ 16 

anthropometric data to the photographs of suspects and ex- 
convicts, permits a more easy personal identification of criminals. 
The Bertillon system was the first nucleus of the scientific police, 
brought to a high integral development by Ottolenghi, with tests 
and proofs strictly in accord with the premises of the positive 
school. Then came all the studies (Warner, Galton, Boas, 
Zuccarelli, Riccardi, Niceforo, Laschi, Miliarewsky, Marina) and 
the institutions (Medico-Pedagogical Institute of Petrograd 
directed by Miliarewsky, Elmira Reformatory, etc.) destined to 
establish scientific and practical relations of anthropology and 
psycho-pathology with pedagogy. Finally, in late years, the legis- 
lative activity in all that pertains to the habitual. criminal, to the 
labor of convicts, to penitentiary systems, to public and private 
insane asylums, and to conditional liberation, conforms more and 
more to the rules, methods, and results of criminal anthropology 
and criminal sociology. Even the establishment of asylums for 
the criminal insane ("manicomes"), suspension of sentence for 
the occasional minor delinquents, reparation to the parties injured 
for the loss sustained, and the indeterminate sentences for crimi- 
nals in whose case indemnity is insufficient, because of the serious- 
ness of the act, and especially because of the personal conditions 
surrounding the wrongdoer 1 — all of this is a direct and spe- 
cific application of the rules of the positive school. It should 
be remembered that the prison reforms accomplished in England 
— beginning with the appointment of Griffiths as inspector- 
general of prisons, who at the Geneva Congress (Aug., 1896) of 
criminal anthropology expressed his belief in the principal con- 
clusions of the positive criminal school, and especially in its 
opposition to the cell-system, 2 have been inspired entirely by 

1 Vrbye, "Les sentences indeterminees dans le projet de C. P. Norvegien," 
in the "Revue penale Suisse," 1898, p. 71; Florian, "La scuola positiva nel prog, 
di C. P. Norvegese," in the "Scuola positiva," 1898, p. 157; Otlet, "Les sentences 
indeterminees et la legislation beige" (Brussels, 1898), p. 9; Franchi, "Di un sis- 
tema relativo di pene a tempo indeterminate, " in the "Scuola positiva," 1900, p. 
449. 

2 Morrison, "La scuola positiva nelle reforme penali inglesi," in the "Scuola 
positiva," 1874, p. 1072; Jessie W. Mario, "La crisi carceraria in Inghilterra" 
{ibidem, 1897), p. 316; Griffiths, "Le traitement pratique de la recidive," in the 
"Actes du Congres international d' anthropologie criminelle" (Geneva, 1897), pp. 
340 and 364. In Italy, prison reform is delayed; but one can foresee what it will 
be according to the draft of the law by Minister Giolitti for open air labor of con- 
victs (5 Dec, 1902), which was one of the first affirmations of the positive school. 
See Ferri "Studii sulla criminalita ed altri saggi," pp. 163 el seq.; the lecture "La- 
voro e celle dei condannati," at Rome, 24 Nov., 1885. See in the "Scuola positiva" 



§ 16] THE POSITIVE SCHOOL OF CRIMINAL LAW 35 

positivist ideas, which readily find lodgment in the Anglo-Saxon 
mind, as we shall also see in considering the theory of responsibil- 
ity, 1 and which are therefore in that particular naturally in accord 
with the researches of criminal anthropology and criminal 
sociology. 

The signification of all this is that in publications, as in 
congresses; in scientific societies as in private associations; in 
judicial practice as in legislative discussions; in administrative 
regulations as in statutory reforms; the new criminal school is 
ceaselessly spreading more and more, by forcing itself on public 
attention and by acquiring new champions. Indeed, to such an 
extent is this true, that it already has a history concerning which 
entire volumes of documents and bibliographical notes have been 
published. 2 With all the exuberance of its scientific and practical 
vitality, it has brought, and still brings, highly oxygenated air 
and lif egiving light into the schools and institutions that have 
hitherto remained separated from the actual world and secluded 
in the now sterile circles of syllogistic abstractions and metaphysi- 
cal doctrinairism which (as Pasquale Stanislas Mancini himself 
admitted in his last address on the Penal Code) "had formerly 
supposed the delinquent to be enclosed in a glass case and that 
the physical and external influences about him scarcely concerned 
him at all." Thus the great Classicist himself recognized "the 
services which this criminal school has rendered and is able to 
render." 3 

This new energetic scientific force may therefore wait patiently 
and fearlessly, until the common conscience, illuminated in its 
turn by the irresistible study of facts, turns by a natural evolution 
towards the new doctrines, giving them, as once it gave the class- 
ical doctrines (which a century ago constituted a great scientific 
revolution), the sanction of its assent expressed in positive laws 
dealing with the morbid phenomena of crime and thus adequately 

(Jan., Feb., 1903); Franchi, "II progetto Giolitti per il lavoro dei condannati 
all' aperto, e il Diritto penale." 

1 See post. 

2 Wulffert, "The anthropologico-positive school of penal law in Italy" (in Rus- 
sian), vol. I, 1887; vol. II, 1893; Dorado Montero, " L' Anthropologia Criminal 
en Italia" (Madrid, 1890), 1 vol., of 177 pages; Frassati, "La nuova scuola di di- 
ritto penale in Italia ed all' estero" (Turin, 1891), 1 vol., of 477 pages; De Quiros, 
" Las nuevas teorias de la criminalidad" (Madrid, 1898), 1 vol. of 357 pages (trans- 
lated into English and published as the first volume of this Series). 

3 Mancini, in the "Atti parlamentari," 7 June, 1888, p. 3338, and in my book 
"Difese penali" (Turin, 1889), p. 356. 



36 INTRODUCTION [§ 17 

administering that self-styled "penal justice," which until now, 
either through barbarous popular prejudice or class interest, has 
been enveloped in the sanguinary mists of the spirit of hatred 
and vengeance. 

§ 17. Criminal Sociology, — the Programme. 
Hence, to recapitulate, the positive criminal school does not 
consist, as it seems convenient for many of its critics to feign to 
believe, only in the anthropological study of the criminal; it con- 
stitutes a complete renovation, — a radical change of scientific 
method in the study of criminal social pathology and in the study 
of what is most effectual among the social and juridical remedies 
that social pathology presents. The science of crimes and pun- 
ishments was formerly a doctrinal exposition of the syllogisms 
brought forth by the sole force of logical phantasy. Our school 
has made of it a science of positive observation, which, based on 
anthropology, psychology, and criminal statistics as well as on 
criminal law and studies relative to imprisonment, becomes the 
synthetic science to which I myself gave the name "Criminal 
Sociology." Who would have said that the observations of La- 
place on the nebular theory, the voyages of exploration in savage 
lands, the first studies of Camper, White, and Blumenbach of 
measurements of the human skull and skeleton, the researches of 
Darwin on the variations obtained in breeding cattle, or the ob- 
servations of Haeckel in embryology — might some day be of in- 
terest to criminal law? With the present division of scientific labor, 
it becomes difficult to foresee the possible connection between 
branches of science so diverse and so far removed from one another. 
And yet it was these astronomical observations, these recitals 
of travel which show in the savages of to-day the infancy of 
primitive humanity and also these zoological and anthropological 
investigations, that gave birth to the first idea, yielding repeated 
proofs of the universal law of evolution which has dominated and 
renewed the whole scientific world, not excepting the moral and 
social sciences, among which definitely figures criminal law. And 
it is with these discoveries, intimately concerning man, that the 
criminologist of to-day must occupy himself, in order to seek from 
the experimental sciences, a positive base for his juridical and 
social conceptions, unless he consents to resign himself to that 
mere exercise of rhetoric to which daily practice in the criminal 
courts gives the lie. 



§ 17] THE POSITIVE SCHOOL OF CRIMINAL LAW 37 

The juridical valuation of criminal acts strictly concerns the 
criminologist. There are two main reasons why he can no 
longer put off considering it. The first is to prevent laymen 
drawing extravagant and erroneous conclusions from the facts 
which belie the old theories; the second, that while the other 
juridical sciences are concerned with social relations (abstract- 
ing individual particularities which do not directly change their 
value) — the doctrine of crimes and punishment, unlike them, 
has man, as he really lives and acts in the social medium, as 
its immediate object. It is clear that the classical criminolo- 
gists would oppose this new scientific movement, were it only 
through the force of inertia. Accustomed as they are to build 
abstract theories with the aid of pure logic and without other 
tools than paper, pen, ink, and the volumes of their predecessors, 
it is natural that they should regret finding themselves forced, 
if not to make personal researches, at least to procure some posi- 
tive knowledge of anthropology, psychology, and statistics. But 
the historical reasons for modern scientific thought, as we have 
indicated them above, render an increasing complexity in the 
science of crimes and punishments inevitable, arising from the 
law that things must develop in becoming more and more complex 
which is so in the physical as well as in the intellectual and moral 
order. Now in recapitulating the most serious and most flagrant 
divergences between the new results of the positive sciences 
(which study man as a physio-psychic organism, born and living 
in the midst of a fixed physical and social medium) and the meta- 
physical doctrines on crime punishment and penal justice of the 
past, I think I can reduce them to the following points. 

Among the fundamental bases of criminal and penal law as 
heretofore understood are these three postulates: 

1. The criminal has the same ideas, the same sentiments as 
any other man. 

2. The principal effect of punishment is to arrest the excess 
and the increase of crime. 

3. Man is endowed with free will or moral liberty; and for 
that reason, is morally guilty and legally responsible for his crimes. 

On the other hand, one has only to go out of the scholastic 
circle of juridical studies and "a priori" affirmations, to find in 
opposition to the preceding assertions, these conclusions of the 
experimental sciences: 

1. Anthropology shows by facts that the delinquent is not a 



38 INTRODUCTION [§ 17 

normal man; that on the contrary he represents a special class, 
a variation of the human race through organic and psychical 
abnormalities, either hereditary or acquired. 

2. Statistics prove that the appearance, increase, decrease, 
or disappearance of crime depends upon other reasons than the 
punishments prescribed by the codes and applied by the courts. 

3. Positive psychology has demonstrated that the pretended 
free will is a purely subjective illusion. 

At first glance it would seem that the new conclusions founded 
on facts could be nothing less than the funeral oration of penal 
law. Indeed, this might have been dreaded, did we not believe 
that every social phenomenon and every institution, far from being 
the result of human caprice or arbitrary establishment is, on the 
contrary, a necessary consequence of conditions natural to the 
existence of humanity and that for this reason as long as these 
conditions be not essentially changed — which until now has not 
happened — the foundation itself of these institutions must sub- 
sist whatever change may take place in the manner of sustaining, 
studying, and regulating them in conformity with new conditions, 
founded on facts. 1 The very purpose of this work is to prove that 
penal law, whether as a function exercised by society in self- 
defense, or as a collection of scientific principles intended to regu- 

1 I have treated in "Soeialismo e criminalita" (Turin, 1883; out of print) a 
quite different question from whether in a social order entirely different from the 
actual social order and such as socialism foresees it, crime must entirely disappear 
and with it every function not only penal in character but for social preservation. 

In that book, I recognized the "substantial truth of socialism," but I com- 
bated the declarations and romantic visions of sentimental socialism then domi- 
nant in Italy. Later, when there developed also in Italy a current of scientific and 
positive socialism (Marx), I recognized its fundamental accord with the theories 
of biological evolution (Spencer), and this I demonstrated in the book "Soeia- 
lismo e scienza positiva" (Rome, 1894, 2d ed. in press, and Paris, Giard et Briere, 
1896), and did but confirm and explain my former conviction of the "substantial 
truth of socialism." I there also confirmed my opinion that under a socialist 
regime, crime in its most numerous and epidemic forms would disappear — in 
the forms determined by natural and moral suffering; but it would not completely 
disappear and would subsist in the sporadic forms of extreme cases. The parti- 
sans of scientific socialism rallied to this opinion, abandoning the former mono- 
syllabic and sentimental claims of a complete disappearance of every criminal 
manifestation. 

The positive criminal school in demonstrating the pathological nature of 
crime, and consequently in transforming penal justice from an empirical punish- 
ment for moral defects that are impossible of definition and from an instrument 
of class domination into a function of social preservation, as for the contagiously 
diseased, the insane, etc., and hence fully and obviously in accord with scientific 
socialism — really gives to socialism a very solid foundation aside from economic 
doctrines. 



§ 17] THE POSITIVE SCHOOL OF CRIMINAL LAW 39 

late this function, always has its reasons for existence. But it 
will at the same time point out the thorough renovation which is 
being produced in the spirit and in the practical applications of 
penal law. And this renovation finds its synthetic expression 
in the following declaration: We should henceforth devote our- 
selves not to doctrinal criminal law but to positive criminal sociol- 
ogy in the sense and with the results that I shall develop in the 
following chapters. 

That is the reason why this work on criminal sociology, from the first edition 
(1881) to the third (anterior to my open adhesion to socialism), is able to remain 
intact, in its general lines, down to this edition, reconciling perfectly its inductions 
with the data and conclusions of scientific socialism. 



PART I 
DATA OF CRIMINAL ANTHROPOLOGY 

CHAPTER I 

NATURAL HISTORY OF CRIMINAL MAN 

The genesis of the anthropological criminal school. Methods. Value of data. 
Observation of Criminals. 

§ 18. The Genesis of the Anthropological Criminal School. 

It was such data 1 which first of all inaugurated the present 
renewal of criminal science and which gave a name to the new 
school currently designated by many people as the Anthropo- 
logico-criminal School. This name may now be insufficient because 
in the few years of its existence the positive school has also already 
utilized and made the data of psychology, statistics, and sociol- 
ogy part of its own substance; still, the first impulse to the new 
school was due to anthropological studies. And this impulse 
came after a useful preparatory phase in which Lombroso, having 
united scattered and fragmentary observations on criminals in 
one organic whole, enriched it by his personal and original re- 
searches and, breathing life into it, really founded the new science 
of criminal anthropology. And naturally (since as Pascal says 
man is the most wonderful object of study for man) even in the 
most ancient observers fragmentary traces of anthropology in 
general and of criminal anthropology in particular, are encoun- 
tered; especially are there traces of the latter, because if man has 
an interest in knowing his fellow-men, it is useful to him for even 
stronger reasons to know the most dangerous and, in certain 
respects, the most interesting, that is, criminals. 

And by the same reasoning, if popular experience has at- 
tempted (at all times) to formulate in numerous proverbs some 
of the most evident data of this instructive art of judging men 

1 Data ("donn^es") evidently signifies here not conceded propositions upon 
which a reasoning is built, but the results furnished ("donnees") by one science 
and upon which another may rely. Trans. 



§ 18] NATURAL HISTORY OF CRIMINAL MAN 41 

by experience, these studies in criminal anthropology still have 
a great attraction for the public mind which has given our new 
criminal school an inaccurate name. Thus it is, that through 
the effects of unconscious tradition, criminal anthropologists are 
often supposed to be only phrenologists and physiognomists; 
they are especially so considered by the amateur critics with 
whom we have occupied ourselves elsewhere. There is a steady 
advance from the earliest observations on physiognomy in Plato, 
who compares the features and character of man with those of 
animals, and in Aristotle who studied the physio-psychological 
relations between the features of man and his dominant pas- 
sions, passing over the errors of chiromancy, of metoscopy, of 
podomancy, etc., in the Middle Ages, to 1600, when studies in 
physiognomy developed with the works of the Jesuit Niquezio, 
Cortes, Cardan, De la Chambre, and especially of the Neapoli- 
tan, Delia Porta, who openly combated the illusions of judicial 
astrology, and of Ingegneri, whose works afford us genial intu- 
itions confirmed by recent labors. 1 Such were the immediate pre- 
cursors of the famous physiognomy and phrenology of Lavator, 
Gall, and Spurzheim, who inspired Lauvergne hi his studies of 
convicts (1861) and Attomyr (1832), both of whom lost themselves 
in the exaggerations of those basic scientific elements. Then in 
the field of scientific observation in the last century, studies on 
the expression of human feelings were pursued by Camper, Bel, 
Engel, Burgess, Duchenne, Gratiolet, Piderit, Mantegazza, Tebaldi, 
Schaffausen, Schack, and especially Darwin. In the special 
study of delinquents (aside from the indications of the old phrenol- 
ogy and the opinions published by some of the ancient Italian 
phrenologists) in addition to Lauvergne in France and Attomyr 
in Germany, Derolandis published in Italy the necroscopy of a 

1 As another confirmation of the facts observed by criminal anthropology, we 
have the genial intuitions of art, which, from Greek tragedy to Shakespeare, from 
Dante to the moderns, and in the masterpieces of painting, have seized and illu- 
minated the organic and psychic stigmata of criminals. See Mayor, "Ico- 
nografia dei Cesari" (Rome, 1885); Lefort, "Le type criminel d'apres les savants 
etles artistes" (Lyons, 1892); Patrizi, "La psicologia e l'anthropologia criminate 
nel romanzo contemporeano" (Turin, 1892); Ferri, "Les criminels dans l'art," 
2d ed. (Paris Alcan, 1902); Sighele, "Delitti e delinquent danteschi" (Trent, 
1896); Ziino, "Shakespeare e la scienza moderna" (Palermo, 1897); Niceforo, 
"Criminali e degenerati dell' Inferno dantesco" (Turin, 1898); Benedikt, Kri- 
minal Anthropologic in der Kunst und in der Wissenschaft, ' in the "Deutsche 
Revue" (February, 1898); Oalante, "Due delinquenti nell' arte," in the "Ano- 
malo" (July, 1898); Leggiardi, "I criminali in A. Manzoni," in the "Archivio 
di psichiatria," XIX, 349. 



42 DATA OF CRIMINAL ANTHROPOLOGY [§ 18 

criminal (1835). Felix Voisin, in 1837, presented to the Academy 
a memorial "on the defective cerebral organization of the greater 
portion of criminals"; Samson, in America, indicated the relations 
between criminality and cerebral organization; in Germany, Cas- 
per published a study on the physiognomy of murderers (1854), 
and Ave Lallemant published a voluminous monograph, largely 
psychological, on German criminals (1858-1862). 

It may be said, however, that the present movement in an- 
thropologico-criminal studies began most particularly with the 
researches of some English prison doctors and other specialists, 
such as Winslow (1854), Mayhew (1860), Thomson (1870), 
Nicolson (1872), Maudsley (1873), and with that quite re- 
markable work of Despine (1868), which, with that of Ave 
Lallemant, represents (only in the field of psychology, however,) 
the most important effort which had preceded the work of Lom- 
broso. Yet it is his work which deserves the merit of having 
made criminal anthropology a new and distinct branch of science 
detached from the trunk of general anthropology, which itself 
came into being scarcely a century ago, with the special labors 
of Daubenton, Blumenbach, Camper, White, and Prichard. The 
work of Lombroso has two original sins. The first is that it gave 
(but really mostly in form) an excessive importance to craniolog- 
ical and anthropometrical, in comparison with psychological, 
data: the second, that it confused (in the first two editions) all 
criminals in a single type, distinguishing only as a special type 
(in the second edition) the authors of crimes of passion and con- 
tradistinguishing the insane by the description of characteristics 
which differentiate them from real criminals. 1 These original 
sins, which were corrected and avoided, the second particularly, 
in successive editions, in nowise obscured (since perfection is 
accorded to no one) these two luminous facts: first, that im- 
mediately after the "Uomo delinquente" there was published in 
Italy and elsewhere an abundant library of criminal anthropology; 
and second, that then the new school was organized with an unity 
of method, with starting points and aims, with a scientific fertil- 
ity theretofore unknown to classical criminal science. 

1 The fifth edition of "L'uomo delinquente" (Turin, 1877) is divided into 
three volumes, of which the first, treating of the bom-criminal, has already been 
translated into several languages. The second treats (not to mention the moral 
and epileptic insane) of the other criminal types; criminals by passion, insane 
(alcoholic, hysterical, mattoid), occasional, habitual. The third volume treats of 



§ 19] NATURAL HISTORY OF CRIMINAL MAN 43 

§ 19. The Methods of the Anthropological Criminal School. 
What then is this criminal anthropology? What are the data 
that it has collected up till now and which, henceforward, as 
partial syntheses, will permit the general principles of the law of 
social defense to be traced and consequently direct and support 
the inductions of criminal sociology? Since general anthropol- 
ogy, according to the definition of Quatrefages, is "the natural 
history of man as zoology is the natural history of animals," 
criminal anthropology is but the study of a human variation of 
a particular type; hence it is the natural history of criminal man, 
the same as psychiatric anthropology is the natural history of 
demented man. That is to say that it undertakes those studies 
of the criminal's organic and psychical constitution and social 
life or relations, which the anthropologist has undertaken for man 
in general and for the different human races. This suffices to 
explain the wonderful success in results which have already en- 
riched this new science. Furthermore, as anthropology in the 
study of man in general has, by virtue only of its method of obser- 
vation and experiment, recorded such astonishing successes in so 
few years in comparison with the ancient philosophy or "a priori" 
psychology, — so, in the study of crime and of the criminal, this 
subdivision of anthropology has recorded surprising successes in 
comparison with the classical criminal science, thanks only to the 
efficacy of substituting the positive for the "a priori" method of 
pure subjective observation. And as I have already said, while 
the classical jurists studied and still study crimes in their abstract 
form, starting with the "a priori" supposition that he who com- 
mits a crime (save in the exceptional and evident cases of infancy, 
insanity, drunkenness, or physical disability) is a man like other 
men, endowed with intelligence and normal feelings, the criminal 
anthropologists on the contrary submit the criminal to a direct 
examination on the dissecting table, in the physiological labora- 
tories, prisons, and insane asylums, both organically and psychi- 
cally comparing his characteristics with those presented by the 
normal and the insane. Now, these physical and psychical 
observations have led the anthropologists to affirm and have also 
proved that criminal man not only (as the English authors first 
said) may belong to an "intermediate zone" between the sane and 

the etiology, the prophylaxis, and the therapy of crime with a synthesis and penal 
applications. 



44 DATA OF CRIMINAL ANTHROPOLOGY [§ 19 

the insane, but that he constitutes, strictly speaking (as Lom- 
broso showed and as others since have become convinced), a dis- 
tinct anthropological variety which presents special traits both 
from the point of view of pathology and from that of degeneracy 
and atavism; and that, especially in these latter traits, he repre- 
sents the inferior races in our actual civilization; and finally, that 
he is in every respect different from the normal type of healthy, 
well-developed, and civilized man. Indeed, this idea that crim- 
inal man, particularly in his most characteristic type, is a savage 
in our civilization, had doubtless been indicated by Mayhew, Eu- 
gene Sue, Despine, Lubbock, and others 1 before Lombroso. But 
this fact should not be taken, as these authors thought, in a purely 
literary sense. Its scientific value should be strictly recognized 
in relation to the Darwinian or genetico-experimental method, 
as Vignoli 2 calls it, and conformably to the whole natural principle 
of evolution. In my opinion, one of the greatest scientific bene- 
fits which criminal anthropology owes to Lombroso is precisely 
that he illumined the study of the criminal man of to-day, with 
the idea that he, whether by an atavistic return, degeneracy, 
arrested development, or some pathological condition, truly re- 
produces the organic or psychical traits of primitive humanity. 
The idea is most happy, since, supplemented with that other idea 
of Sergi 3 "on the stratification of character," it explains at a 
glance the why and how of the most singular traits of the typical 
criminal, especially from the psychological point of view. These 

1 Lubbock, "The Origin of Civilization and the Primitive Condition of Man" 
(London, 1889) , indicates this idea in passing: "In reality our criminal population 
is composed of pure savages whose crimes are largely but senseless and desperate 
efforts to act as savages, in the midst and at the expense of a civilized society." 
Before him Despine, "Psychologie naturelle" (1868), III, p. 300, has said that 
"brigandage could be defined as the savage state in the midst of a civilized people." 
This had already been expressed by Eugene Sue from familiar studies from nature, 
in the first chapter of "Mysteres de Paris." Mayhew, in turn wrote: "It has been 
noted that in our cities the dangerous classes, who are vagabonds and savages, 
present the same anthropological traits as the nomadic tribes, Kaffirs, Fellahs, 
etc. and in their faces show a great development of the jaws." "London Labor 
and London Poor" (1847, p. 4). 

2 Vignoli, "Carlo Darwin et il pensiero," in the "Rivista de filosofia scienti- 
fica," III, 270. 

3 Sergi, "La stratificazione del carattere e la delinquenza," R. F. S. (April, 
1883). The concept was already indicated by Ardigb, "Relativita della logica 
umana," in the "Cronaca Bizantina" (15 August, 1881), and in his works, vol. Ill 
(Padua 1885), p. 418. This idea of stratification for social evolution in relation to 
the different classes had also been indicated by Ray Lancaster, "De la degene- 
rescence," in the "Revue internationale des sciences biologiques" (1882). 



§20] NATURAL HISTORY OF CRIMINAL MAN 45 

traits are abnormal in civilized men, but common and normal 
among the inferior races. It is a further guide in the ulterior 
study of the anthropological characteristics of the criminal in 
showing his methods when barbarous and savage. In the savage, 
and also in the civilized child, the law formulated by Haeckel l 
"that for physical organisms, the development of the individual 
('ontogenie') reproduces and resumes the phases of development 
of the species that have preceded it in the zoological series 
('phylogenie')" should be supplemented by the observations 
of Lilienfeld, Spencer, Perez, Preyer, and others extending it to 
the psychical development. 2 It is precisely thus that the typical 
criminal, aside from his traits of an adult savage, reproduces also, 
while retaining them permanently, the traits which in a civilized 
man are appropriate to infancy, and hence transitory. Thus what 
is so accurately said of savages (that they are big children) can be 
said with truth of the criminals who, without mentioning the most 
striking cases of real infantilism, 3 are always in a state of prolonged 
infancy. 4 Consequently this idea, drawn as one can see from the 
natural principle of evolution, is sufficient to make instantly 
comprehensible, even to those who are not initiated in the an- 
thropological sciences, the entire value of the new data of criminal 
anthropology. 

§ 20. Value of Anthropological Data in Anthropology and Criminal 
Sociology. 

But with respect to this data, before briefly summing it up 
here, and even before replying to the principal objections it has 
aroused, it is important to insist on a general consideration already 

1 Haeckel, "Anthropogenie," Lee. I, p. 5. 

2 Majorana later developed this thought in his work, "Ipostesi di una legge 
di embriologia sociale," in the "Archivio di diritto pubblico," I, fasc. 1. 

s Brouardel, "De l'enfance des eriminels dans ses rapports avec la predisposi- 
tion natureUe au crime," in the "Actes du congres d'anthropologie criminelle" 
(Paris 1890), p. S85; Meige, "L'infantilisme," in the "Revue Internationale de 
medicin et de chirugie" (1898), No. 6. , - . ■ n- .. 

* Lombroso and Marro "I germi del delitto e della pazzia morale nei fanciuUi, 
A P (1883), pp. 7 and 153; Lombroso, "L'uomodelinquente," I, pp. 98 etseq,; Perez, 
"Les trois premieres annees de l'enfant." — " L'enf ant de trois a sept ans. — 
"L'education morale des le berceau" (Paris, 1894-96); Preyer, Die Seele des 
Kindes" (Leipsic, 1882); CompayrS, devolution intellectuelle et morale de 
l'enfant," 2d ed. (Paris, 1896); Baldwin, "Le devellopement mental chez 1 enfant 
et dans la race"; Anfossi, "L'onesta nei bambini," A. P. XVIII, 531; Paola 
lombroso, "Saggi psicologici sui bambini" (Turin, 1896); Schinz La morahte 
de l'enfant," in the "Revue philosophique," March, 1898, and SuUy, Etudes 
sur l'enfance" (Paris, 1898). 



46 DATA OF CRIMINAL ANTHROPOLOGY [§20 

advanced by me in previous editions but which the opponents of 
the new school have found it convenient to disregard in their 
biased criticisms: The technical value of the anthropological data 
on the criminal must be distinguished from its scientific value in 
criminal sociology. To the criminal anthropologist who is con- 
cerned with the natural history of the delinquent, all of the data 
has its own anatomical, physiological, or psychological value, 
regardless of the sociological deductions that may be drawn from 
it. This is why the technical side of the continuous detailed 
researches, on the organic and psychic constitution of the criminal, 
is the field reserved to the new autonomous science of criminal 
anthropology. On the other hand, to the criminal sociologist 
this data, which is the culmination of anthropology, is but the 
point of beginning in reaching juridico-social conclusions which 
escape the special competence of the anthropologist. It may be 
said, in fact, that criminal anthropology is to criminal sociology 
what the biological sciences, both descriptive and experimental, 
are to the clinic. 1 That is to say, that as the clinical physician 
is not bound independently to sound the depths of anatomy and 
physiology he must at least know their final indicia in order to 
draw his diagnostic and therapeutic inductions; so the criminal 
sociologist is satisfied with being an adept in the juridico-social 
sciences and consequently is not obliged to make his own anthropo- 
logical studies of the criminal. His sole scientific duty is to take 
as the basis of his inductions, not the syllogistic premises of crime 
considered as an abstract entity, but rather the positive data of 
the individual causes of criminality furnished by criminal an- 
thropology together with the determined external causes of crime 
furnished by criminal statistics. Assuredly, as happened at the 
inception of the new school, the criminal sociologist, not content 
with reading the works on criminal anthropology, may make his 
own personal studies on the physical and psychical constitution 
of criminals and thereby derive the paramount advantage flowing 
from the secret of the positive method, for direct observation of 
a single fact is more profitable than the reading of several volumes. 
At all events, in our opinion the technical study of criminal an- 
thropology is not, as some would have made us assert, a profes- 
sional obligation for the criminal sociologist. He is bound only 
to rely upon the synthetic and final notions of anthropology, 

1 See, on a similar subject: Lester Ward, "Relation of Sociology to Anthro- 
pology," in the "American Anthropologist" (July, 1896). 



§20] NATURAL HISTORY OF CRIMINAL MAN 47 

psychology, and statistics which those sciences furnish him. Then 
again, one understands how many questions which directly interest 
criminal anthropology with respect to the accuracy or even the 
biologic interpretation of some special data, may concern criminal 
sociology only in a secondary manner. For this reason the ques- 
tion is not well put by Messedaglia and others, in the form, 
"what relation can there be between a more or less elevated 
cephalic index and a propensity to homicide?" 1 or, "what is the 
relation between a frontal protuberance and the responsibility of 
him who has it?" for such is not the scientific function of an- 
thropological data in criminal sociology. The only legitimate 
decision that we may demand of the anthropologists is this: "Is 
the criminal always or in what cases is he a normal or an abnormal 
man? And if abnormal, whence comes this abnormality? Is it 
congenital or acquired, corrigible or incorrigible? " This is all we 
can ask of criminal anthropology and it suffices for the jurist or, 
to express it better, for the criminal sociologist in the making of 
his deductions on the necessity and the forms of social defense 
against crime, as from other points of view he demands other 
data of criminal statistics. To come, then, to a summary indica- 
tion of the principal results hitherto established by criminal an- 
thropology (referring the reader to the numerous special treatises 
for minute details), 2 we must bear in mind that the criminal is 
studied under the two inseparable and fundamental aspects of 
animal life and human life which constitute man organically and 
psychically. Naturally the organic study comes first, not only 
because the organ which is the physical basis must be studied before 
the function, but also because, in a fight with the unknown (which 

1 Messedaglia, "Le statistica della criminalita, " in the " Archivio di statistica," 
III (Rome, 1878). 

2 The fifth edition of "L'uomo delinquente" of Lombroso, contains the most 
complete and most analytical exposition of it. Among the jurists and sociologists 
the following summaries may be sufficient: Riccardi, "Dati fundamentali di an- 
thropologia criminale," in the "Trattato di diritto penale" (published by Cogliolo, 
Milan, 1889), Vol. I, Part III; Corre, "Les criminels" (Paris, 1889); Havelock 
EUis, "The Criminal" (London, 1890); Francotti, " L'anthropologie criminelle" 
(Paris, 1891); Kurella, " Naturgeschichte des Verbrechers" (Stuttgart, 1893); 
MacDonald, "Criminology," 1st part (New York, 1893); Dallemagne, "Stigmates 
anatomiques" (Paris, 1896), "Stigmates bio-sociologiques de la criminalite " 
(Paris, 1896), 2d volume; — and especially: Severi, "L'uomo criminale" in the 
"Manuale di medecina legale" of Filippi, 2d ed. (Milan, 1897), Vol. Ill; Angio- 
sella, "Manuale di antropologia criminale" (Milan, 1898). For researches to be 
made on criminals see Ottolenghi, "Prospetto sinottico," in the "Rivista di polizia 
scientifica" (November, 1897), p. 119. 



48 DATA OF CRIMINAL ANTHROPOLOGY [§21 

scientific research is) it is necessary to adopt the tactics of a siege, 
beginning with the occupation and knowledge of distant points 
in order gradually to reach the more central points most directly 
involved in the ultimate phenomenon whose natural conditions 
are to be determined. This is why the reproach, heretofore so 
commonly applied to criminal anthropology, that it adheres too 
much to the study of the craniology of the delinquent (which is, 
people rightly say, far from indicating the immediate determinants 
of crime), would perhaps be well-founded if it made any pretension 
to be limited to this study. But there is nothing serious in the 
objection for one who knows that, as the organic study of the de- 
linquent is only the preface to the psycho-sociological study which 
is to follow it, so likewise in the organo-logical field the most remote 
researches on the cranium, on physiognomy, etc., are but the 
zigzags and parallels of a siege which are always and which already 
with marked predominance have been followed up and perfected 
by more direct researches on the brain (morphology, intimate 
structure, and pathology) and on the biological conditions of the 
organism. This has been demonstrated by the bibliography of 
even the last few years. 

§ 21. Craniological Data. 

In the meantime, with respect to the craniological data, espe- 
cially in the case of the two most marked types of criminal, the 
murderer and the thief, representing two fundamental and primi- 
tive forms of criminal activity, there has been shown a general 
inferiority in the forms of the skull coupled with a greater 
frequency of atavistic and pathological anomalies often extraor- 
dinarily accumulated in the same individual. Further, the 
examination of the brains of criminals revealing a morphological 
and histological inferiority in the thinking organ, has also per- 
mitted the demonstration of a very noticeable frequency of patho- 
logical conditions which in most instances would not have drawn 
attention to the individual during life. So true is this that Dally 
quite a long time ago declared that "all the criminals (decapitated) 
on whom he made an autopsy showed cerebral lesions." * 

1 Dally, "Discussion before the Societe^e la medicine psychologique de Paris" 
in the "Annales de la medicine psychologique" (1881), I, pp. 93, 266, 280, 483. 



§ 22, 23] NATURAL HISTORY OF CRIMINAL MAN 49 

§ 22. Physical Data. 

The researches, made on other parts of the body, have also 
established singular characteristics from the most exterior, such 
as tattooing, down to the most hidden, such as profound congenital 
anomalies in the conformation of the skeleton and of the viscera 
or in pathological conditions which have supervened. Again, 
researches lately made on the exchange of physiological materials 
in the organism of criminals, and especially on their general sensi- 
bility to pain, on each of their senses and on their physiological 
reaction to exterior stimulation, in tests with sphygmographic 
appliances, have disclosed in a very large number of them ab- 
normal conditions all resulting in an extraordinary physical in- 
sensibility (whence their resistance to wounds, and their longevity), 
which, when measured by the scale of an algometer or the curve 
of the sphygmograph, show the material base and the speaking 
counterpart in the physical make-up of that moral insensibility 
which reveals the fundamental anomaly of their psychic constitu- 
tion. Again, these organic conditions which may be more or less 
evident but which will be more and more clearly unmasked by 
further studies, give us the only intelligible explanation of the 
singularly eloquent phenomenon: The hereditary transmission 
from generation to generation of criminal tendencies as of any 
other physical or moral deformity. 1 

§ 23. C rimin al Psychology; Moral Insensibility and Lack of Foresight. 

The study of criminal psychology has a greater importance and 
a more direct relation with criminality than the purely organic 
study (both for us and for Lombroso himself in his later editions). 2 

1 A few years ago there was a current of thought among the naturalists which, 
following the purely logical and non-experimental hypotheses of Weissman, "Es- 
sais sur 1* heredite" (Paris, 1882), denied the hereditary transmission of acquired 
traits. But to-day, Weissmanism has gone out of fashion, conquered by Dar- 
winism (renewed with Lamarckism) because logical fancies, no matter how seduc- 
tive, are always less durable than the positive observation of facts. See Le 
Dantec, "Les neo-darwiniens et l'heredite des caracteres acquis," R. P. (January. 

1899). 

2 And yet most of our critics, while they dallied beyond measure with syllo- 
gistic and non-experimental tests of each of the anatomical data of criminal anthro- 
pology (and almost exclusively in relation to the skull), still kept a prudent or a 
too frivolously shifty silence on the much more imposing whole series of data of 
criminal psychology. Yet this fixed idea that all criminal anthropology is reduced 
to the measurement of the skull was again repeated, in August, 1896, at the Con- 
gress of German Naturalists at Speyer by Virchow (in a communication on crim- 



50 DATA OF CRIMINAL ANTHROPOLOGY [§23 

Besides giving us certain characteristic traits, I might almost say 
a descriptive order, such as the jargon, the peculiar writing, the 
hieroglyphics and the special literature of the criminal, this study 
further offers us a series of data which, corresponding with those 
we have mentioned from the organic point of view, has shed light 
on the individual genesis of crime. These psychological indicia, 
unless I am in error, should be traced to two fundamental forms 
of anomalies, corresponding with the two psychological determi- 
nants of every human action, sentiment, and idea, that is to say, 
is traced to moral insensibility and to lack of foresight. Moral 
insensibility, much more congenital than acquired, whether total 
or partial, is disclosed in sanguinary as in other crimes, by a series 
of manifestations which I might reproduce here but which are all 
reducible in the majority of criminals to the following two condi- 
tions of moral and social feeling: non-repugnance to the idea or 
to the criminal act before the crime and absence of remorse after 
the crime. 

These conditions are clearly quite removed from the normal 
psychic constitution of honest men or of men exceptionally 
drawn to crime rather by the complicity of their environment 
than by the impulse of their own physical and moral personality. 
They are not only different in themselves but in the attitude which 
they determine in all the other sentiments egoistic or altruistic 
of criminals. Among such persons the feelings appropriate to a 
normal man of the class to which they belong are not at all lack- 
ing; only, instead of being forces opposed to crime, such as the 
sentiments of religion, honor, friendship, or love, they either are 
quiescent in the moral dynamics or else themselves become stim- 
ulants of crime, such as the sentiments of pride, vengeance, or 
cupidity, as well as the sense of self-indulgence, which is savagely 
unchained in the passions of eroticism, gaming, gluttony, and 
intemperate revelry. With this moral insensibility, which from 
the psychic point of view is the first cause of crime viewed as an 
exterior manifestation of individual tendencies, there is combined 
lack of foresight which is determined by insufficient force in the 
association of ideas and which also is betrayed by different mani- 
festations all concurring to destroy the last resistance to crime, 
which would come properly from foreseeing the painful con- 
sequences which must ensue. It is to these traits of fundamental 

inal anthropology), to whom Lombroso replied point for point. "Zukunft" 
(August, 1896), and "Idea liberale" (27 Sepember, 1896). 



§23] NATURAL HISTORY OF CRIMINAL MAN 51 

psychic anomaly that we can trace in the greater part of criminals 
the exaggerated and unbalanced impulsiveness which determines 
abnormal and criminal activity and which is one of the most 
striking characteristics in the psychology of the savage and the 
child. Such then, in general outline, are the data of criminal 
anthropology, with respect to the organic and psychic make-up of 
the criminal. 1 If a technical and analytical examination of this 
data is out of place here, general criminal sociology will have 
before it on one hand, a series of objections, not partially but 
fundamentally opposed to these anthropological features, and on 
the other, the field once freed from these more or less syllogistic 
obstacles, a problem of capital importance, not only from the 
point of view of exact scientific knowledge of anthropologico- 
criminal data but especially from the practical and social point 
of view, for the study of the most available means in the ngnt 
against crime. 

' I have published an annotated study of the data of criminal Psychology 
in my volume entitled " L'omicidio nell' anthropology cnminale, accompanied 
by a statistical anthropological atlas (Bocca, 1895). 



CHAPTER II 

FUNDAMENTAL OBJECTIONS TO DATA OP ANTHROPOLOGY 

Methods. Scientific assumption. Disagreement of data. Criminal traits in 
honest men. Historical and anthropological indetermination of crime. 
Definition of crime. The criminal type. Origin and nature of crim- 
inality. 

§ 24. Objections Advanced Against Criminal Anthropology. 
While leaving to polemical writings published elsewhere the 
care of replying to criticisms which are partial or inspired by 
philosophical and juridical traditionalism, 1 we consider it proper 
to recapitulate the fundamental objections which either a single 
critic or at times several have directed in a scientific spirit to the 
methods and general conclusions of criminal anthropology; they 
bear on the following points: 

I. Methods employed in the study of criminals. 
II. Scientific assumption of criminal anthropology. 

III. Qualitative and quantitative disagreements in the data 

of criminal anthropology. 

IV. The presence of criminal traits, even in honest people on 

the one hand, and on the other in the non-criminal 
insane and in degenerates in general. 
V. The historical and anthropological indetermination of 
crime. 
VI. Non-existence of the anthropological criminal type. 
VII. Divergences in the scientific determination of the origin 
and nature of delinquency. 

§ 25. Methods Employed in the Study of Criminals; Small Number 
of Criminals Examined. 

The criticisms directed at the method employed in the study 
of criminals were two: small number of the individuals examined, 

1 "Polemica in difesa della scuola criminale positiva" (Bologna, 1886); "Uno 
spiritista del diritto penale" (in reply to Lucchini, "I semplicisti"), A. P. (1887),. 
fasc. 1, 2. Preface of the Spanish edition of "Nuovi orizzonti" (Madrid, 1887) 
(in reply to the book of De Aramburu); works collected in Ferri, "Studi sulla cri- 
minalita ed altri saggi." 



§25] FUNDAMENTAL OBJECTIONS TO DATA 52 

and inexactness of comparison between criminals and normal 
persons. Our adversaries have finally abandoned the first criti- 
cism. As early as 1893 Lombroso, in enumerating the de- 
linquents studied only from the biological point of view by 
anthropologists, computed their number at fifty-four thousand, 
delinquents, insane, and normal individuals, l without considering 
that this number would be greatly increased if there were added 
the delinquents who have been studied only from the psycho- 
logical standpoint through the records of their trials and the 
medico-legal experts, and that the whole number has greatly 
increased since 1893. If, with such immense materials for study 
at hand, the objection were made that this number is insignificant 
compared with the hundreds of thousands of delinquents and 
consequently is rendered valueless by the law of great numbers, 
we might have something to say in reply. First of all, it is a 
metaphysical prejudice not to accord importance to what are 
called isolated facts. Nature has no isolated facts, because each 
fact thus denominated is the index and the symptom of a system 
of causes and of laws. Scientific discoveries always spring from 
the attention bestowed upon those isolated facts which are com- 
monly termed accidental or exceptional. Rtimelin rightly said 
that the secret of the great progress in natural sciences is to be 
found in the rule that "in nature, each particular case may serve 
as a type." 2 In the second place, let us hasten to recall, even in 
reference to the anthropological deductions, a biological law which 
in my opinion should be combined with the law of great numbers, 
namely, the law by which in general, biological evidences of the 
greater importance are subject to slight variations. 3 It is easy 
to give a great many proofs of this: for instance, if the length of 
the arm may vary by several centimeters in different men, on the 
other hand the width of the forehead can vary only by a few 
millimeters. 4 Hence, this evident consequence, that in anthropo- 

1 Lombroso, "Le piu recenti scoperte ed applicazione dell'anthropologia cri- 
minate" (Turin, 1893), p. VI. 

2 Rumelin, ''Problemes d'economie politique et de statistique" (Paris, 1896), 
p. 87. 

3 QuHelet, "Fisica sociale", in the "Biblioteca dell'Economia," pp. 636-637; 
"Antropometria," ibid., pp. 983, 1004; Topinard, " Anthropologic" (Paris, 1879), 
3d edition, p. 225; Milne-Edwards, "Introduction to General Zoology," pp. 9 et seq.; 
Messedaglia, "Di alcuni argomenti di statistica teorica," in A. S. (1880), see p. 
26; Dallemagne, "Stigmates economiques de la criminalite" (Paris, 1896), p. 43. 

1 This does not contradict what Darwin said of the variations even of the 
most important organs among individuals of the same species, "On the Origin of 



54 DATA OF CRIMINAL ANTHROPOLOGY [§25 

logical researches the necessity for great numbers is in a direct 
ratio with the variability of the characteristics studied or in an 
inverse ratio with their biological importance. It may be stated, 
therefore, not that the criticisms of the haste of many anthro- 
pologists (especially in the beginnings of the science) to draw 
conclusions from very rare observations, are entirely without 
foundation, but that the law of numbers should be conceded a 
"rationabile obsequium." That law does not in fact teach us 
the precise moment when the appreciable value of observations 
begins and its value therefore is entirely relative; it means only 
that the weight of one hundred observations is less than that of 
one thousand, but not that such weight is null. It does not even 
say that the value of one thousand observations is ten times the 
value of one hundred. The positive value of a conclusion com- 
mences with the first observation and increases, but in a decreas- 
ing progression relatively to the number of observations, and the 
need of great numbers is regulated by the diverse variability in 
the elements studied; l so that, if these elements were absolutely 
invariable it would be enough to study a single one, in order to 
extend the deduction to all the others. 2 Thus Quetelet was 
convinced that it was not necessary to repeat his anthropo- 
metrical researches on a great number of subjects, to determine 
characteristics which have a restricted limit of variations; Broca, 
for example, fixes the number "of subjects of a type series at 
twenty" for craniological and anthropometrical studies; 3 and 
Durkheim rightly says, following Bacon, that it is inexact to say 
that " science cannot establish laws until after passing in review 
all the facts which the laws express." 4 In criminal statistics, on 
the other hand, where these limits are broader, it has been recog- 

Species'' (London, 1888); he speaks of absolute differences between individuals 
while we are here considering the degree of relative variability in the various 
anthropological characteristics. 

1 Thus, in my anthropological studies on homicides I demonstrated that the 
partial and numerically limited series often reproduce the disposition of entire 
and numerically strong series. "Omicidio" p. 203, 204. 

' Schaeffle, "Bau und Leben des Socialies Korpers," VII, 109, cites the opin- 
ion of Lotze, "Logica," § 287, who denies to the so-called "law of great numbers" 
the true character of a law, since it does not in itself contain any necessary conse- 
quence, being given the premise which constitutes its object, while this is not true 
of all real natural laws. See also Rumelin, for a notion of a social law, in the " Pro- 
blemes d'economie politique et statistique" (Paris, 1896), p. 15; and Tammeo, "La 
statistica" (Turin, 1896), p. 173. 

3 Broca, " Instructions anthropologiques generales '" (Paris, 1879), pp. 188, 189. 

4 Durkheim, "Les regies de la methode sociologique" (Paris, 1895), p. 97. 



§26] FUNDAMENTAL OBJECTIONS TO DATA 55 

nized, as we shall see, that the deductions of Quetelet were prema- 
ture because based upon only a few years; but this fact confirms 
rather than contradicts the preceding observations. Finally, 
there is a decisive consideration: we are entitled to presume that 
these positive deductions represent the truth until proof is made 
of the contrary, consisting not in abstract syllogisms or vague 
objections but in other not less positive deductions drawn from 
an equal or greater number of observed facts. But, we see the 
deductions of criminal anthropology receiving continued confirma- 
tions, — and nothing but confirmations, — whenever anthropo- 
metrical data are checked by the comparison of delinquents with 
honest people. 

Winckler and Berends have lately applied differential cal- 
culus to anthropometrical data taken on normal persons and 
delinquents and they have mathematically demonstrated that 
they form two very distinct groups, corresponding to an actual 
and profound diversity of anthropological type (a diversity 
such as occurs among individuals belonging to quite different 
races) and confirming what I myself have shown; namely, that 
"in spite of great ethnical diversities of the different regions of 
Italy, there is often a greater difference between assassins and 
normal men of the same province, than between the normal 
individuals of different and distant provinces." Thus, for ex- 
ample, in cranial capacity, in frontal diameter, in frontal index, 
in the diameter of the jaws and in the development of the face, 
there is more difference between the assassins of the provinces 
of Naples, Calabria, and Sicily and the soldiers of the same prov- 
inces than there is between the soldiers of the southern regions 
and those of Lombardy and Venice. 1 

§ 26. Method Employed in the Study of Criminals; Inexactness of 
Comparisons. 

The other objection directed to the method of criminal an- 
thropology bears on the comparison between delinquents and 
normal persons. The claim is made that it is inaccurate, both in 
the numerical difference of the two series of individuals compared 
and in the difference between them in personal conditions. As 

1 Winkler, "Jets over criminele anthropologic" (Harlem, 1895); Berends, 
"Eenige Schedelmaten van Recruten, Moordenaars Epileptici, en Imbecillen" 
(Nimegue, 1886); Ferri, "L'Omicidio,' ; pp. 205, 206; Lombroso, "Uomo delin- 
quente," 5th ed. Ill, 633. 



56 DATA OF CRIMINAL ANTHROPOLOGY [§ 26 

to the numerical difference, it does not exist in the case of many 
anthropologists : for, if Marro, for instance, compared five hundred 
delinquents with one hundred normal subjects, I can advert to 
my studies of seven hundred delinquents, seven hundred and 
eleven soldiers, and three hundred insane and, moreover, to the 
total figures reached by Lombroso where there is almost a numer- 
ical equality of delinquents and insane (about 27,000) and normal 
persons (about 25,000). In order to justify the inertia of the 
International Committee, appointed by the Congress of Paris, 
to make a comparative study of delinquents and normal persons, 
Manouvrier went so far as to present to the Brussels Congress a 
report intended to show by syllogisms the impossibility of "the 
comparative study of criminals and honest people, 1 — a study 
which, the contrary notwithstanding, is practised every day by 
criminal anthropologists. 

More serious, however, is the second reproach made of the 
comparison of criminals with honest people where the subjects 
belong to different social classes. It has, indeed, been pointed 
out that in order to get two less heterogenous series, the com- 
parison, should be made of individuals belonging to the same 
social class. This defective mode of comparison, however, is 
not met with in the greater part of anthropologico-criminal 
studies. For example, Lombroso, Ottolenghi, Tarnowski, and 
others have examined honest men and delinquents belonging 
to the same class and yet have obtained equally conclusive 
results. The same may be said of my studies of delinquents 
and of soldiers, which I have fully explained in "L'Omicidio," 
after I had made them by comparing subjects from the same 
provinces and for the greater part belonging to the same classes, 
i. c, workmen and peasants. Further, in observing soldiers in 
comparison with delinquents of the same provinces, we have 
elements of comparison of a better fixed value; for, in soldiers 
we have the real normal type of the popular classes; that is, a 
contingent that excludes pathological elements. 

Moreover, I supplemented these comparisons by considering 
also the insane, who form a third contingent from which the 
normal man is absolutely excluded. The insane afford a second 
term of comparison that is diametrically opposed to the normal 
and healthy type and on that account an effective means for 
counterproof in the comparative study of criminals. 
1 A. C. A. C. (Brussels, 1893), p. 171. 



§27] FUNDAMENTAL OBJECTIONS TO DATA 57 

§ 27. Scientific Assumptions of Criminal Anthropology. 

In view of the interdependence and interweaving of natural 
phenomena, criminal anthropology must take, as a foundation, 
the more general and more positive inductions of biological and 
natural sciences which embrace phenomena less complex and 
consequently anterior to human criminal acts, in the cosmic, 
physical, chemical, biological, and zoological orders as well as in 
general anthropology: so, likewise, criminal sociology must add 
other inductions of a more complex nature supplied by general 
sociology to this substructure of general scientific inductions. 
The objections, aimed from different quarters, at the scientific 
assumptions of criminal anthropology, could therefore directly 
interest this special science only in the case where its adepts 
should borrow but a few particular inductions from the physi- 
cal and biological sciences. When, however, in the name of 
more or less disguised ancient ideas of free will, — which 
whether avowed or dissimulated are at the bottom of all the 
other objections of the spiritists and champions of classical 
criminal law, — when they criticise us on the application of the 
experimental method to the moral and social sciences, on the law of 
universal and biological evolution, on physical, psychological, 
and social determinism, or on the relativity of morals and law 
as historical products of social evolution, we see nothing in the 
controversy but an actual loss of time, since all discussion is 
useless and vain when the adversaries are not even agreed upon 
the general principles of science and philosophy. Among ad- 
versaries of this sort, I will mention De Aramburu, Brusa, Proal, 
and Pellizzari. Quite recently one of the declared partisans of 
natural or monistic philosophy, has disputed the scientific assump- 
tions of anthropology and particularly the following three funda- 
mental points; (a), the relation between the physical and moral 
in man; (b), the genetic relation between organs and functions; 
(c), the relation between the brain, the intelligence, and morality. 1 
Colajanni uses more than ninety pages in denying relations with- 
out which it is simply impossible to conceive of any biological, 
psychological, or social science. It is a negation that I am unable 
to explain otherwise than as the effect of a masked spiritualism 
such as I have met with in other critics, who call themselves 

i Colajanni, "Sociologia criminale" (Catania, 1889), pp. 74-162. 



58 DATA OF CRIMINAL ANTHROPOLOGY [§ 28 

positivists or experimentalists but who are in reality mystics and 
metaphysicians; like Tarde for instance. 

§ 28. Influence of Organic Conditions upon Moral Conduct. 

That the conditions of the organism influence the moral con- 
duct of individuals has been demonstrated by a myriad of clinical 
facts, among which it would be sufficient to recall the constant and 
inevitable variations of moral character produced by alcohol 
unless we should wish to resort to other instances, such as the 
influence of certain atmospheric conditions on nervous irritability 
and, hence, on the character and feelings of individuals. One 
of the most familiar instances of this kind is the wind of the 
American pampas which when it blows in a certain direction 
singularly excites the inhabitants of these wild regions and 
multiplies quarrels and homicides in an obvious and extraor- 
dinary way. And it is generally admitted that certain diets 
modify both the physiological state and the intellectual and 
moral condition of man and other animals. I wish to cite here 
but a single proof, one which will not be questioned, since it is 
dictated in all simplicity by the living reality of facts and with- 
out any scientific preoccupation whatever. Garibaldi, speaking 
of the American horsemen who never spared their fallen or 
wounded enemies, writes: "The constant habit of a -purely car- 
nivorous nourishment and the habit of slaughtering cattle daily 
is probably the cause that makes them so ready to commit 
homicide." 1 The clinical cases of mothers who are tenderly at- 
tached to their children in the intervals between their men- 
strual periods and who torment them and sometimes put them 
to death during such periods is still another proof. Do they 
not suffer anomalies, perhaps as yet unknown to the biologist 
but to the determining influence of which their moral state is 
nevertheless subject? 

Also, what should be said of the changes of character fol- 
lowing certain injuries to the head and of certain cases of moral 
cure, for example, after an operation on the skull releasing the 
brain from the pathological influence of an osteoma or a tumor, 
and of other moral cures, such as where a woman loses her evil 
instincts after the removal of her ovaries? Without putting 
into the crucible of experimental observations, all of the corol- 
laries of Colajanni, so prodigiously imbued with animism, I will 
1 Garibaldi, "Memorie" (Florence, 1888), p. 174. 



§28] FUNDAMENTAL OBJECTIONS TO DATA 59 

say with respect to the second point (genetic relation between 
organs and functions), that if the organ influences the function, 
the reverse is not less true. A man is a good runner if he has 
strong and well-developed lungs and conversely, track exercise 
favored by organic conditions increases the development of his 
lungs. It is also admissible, but not in an absolute way, that 
medicine may draw advantage from moral influence over the 
physical, by suggestion and by other phenomena which are of 
nervous and not mental origin. 1 One may also understand (but 
with benefit of inventory) the conclusion of Wundt that "the 
physical is not the cause but much rather the effect of psychic 
evolution," not only because this conclusion is not absolute and 
indicates only a predominance, that I persist in considering base- 
less, but also because it may be taken in the sense that the exercise 
of the function in different surroundings, by a return effect influ- 
ences the development and even the transformation of the organ; 
and, finally, because Wundt himself weakens the dictum in the 
last paragraph on "the psycho-physical point of view," — a para- 
graph which begins as follows: "The psycho-physical examination 
should rest upon this principle universally established by experi- 
ence, 'nothing comes into our consciousness without a funda- 
mental sensatory basis in determinate physical processes.' " 2 But 
to assert absolutely and without reservation as does Colajanni, 
that "the function engenders the organ," is in my opinion a ra- 
tional absurdity as well as an error in fact, for it is equivalent 
to saying that a function can exist before the corresponding organ 
which it must create. This is even more extreme than the old 
spiritualism, which at least to my knowledge never went so far 
as to claim that the soul creates the body. As to the third point 
(relation between the brain, intelligence, and morality), the conclu- 
sion from the biological sciences which criminal anthropology 
admits and appropriates is this: The brain is indisputably the 
organ of thought; but cerebral volume, although the most im- 
portant element, is not the sole and exclusive determinant of the 
psychic development of the individual. 3 

1 Tuke, "Influence of the Mind on the Body in Health and Disease" (Lon- 
don, 1877); Bernheim, "Neue Studien iiber Hypnotism, Suggestion und Psycho- 
ther'apie" (Leipsic, 1892); Ottolenghi, "La suggestione e la facolta psichiche 
occulte" (Turin, Bocca, 1900), p. 712. 

2 Wundt, "Grundziige der Physiologie und Psychology," 3d. edition (1884). 

3 This answers the repeated assertions of the anti-positivists on the relations 
between the skull, the brain, and thought: See on this subject Simms, "Weight of 



60 DATA OF CRIMINAL ANTHROPOLOGY [§ 29 

§ 29. Sources' of Objections to Anthropological Data. 
The objections to the assumptions drawn by criminal an- 
thropology from the modern biological sciences are evidently 
allied with the neo- vitalism which has shown itself here and there 
in Germany and with the neo-mysticism which has led to the 
declaration that science is bankrupt, — movements born of the 
politico-social reaction against the rise of the modern proletariat, 
and which I have heretofore combated. 1 However, these ob- 
jections also have a more proximate determining cause in the 
preconceived idea of our adversaries, who see in criminality only 
the effect of social factors and who on that account seek by force 
of syllogisms to eliminate the biological factors at any cost. Even 
assuming that all modern biology were a tissue of errors, I yet 
have an argument of fact which I shall ceaselessly offer to all the 
opponents of criminal anthropology and which itself is an unan- 
swerable reply to all the closet criticisms. It is this fact: In the 
prisons and in the insane asylums, confining ourselves to them, 
we know how to distinguish the born-murderer from the rest of 
criminals by bodily characteristics, especially in clean-cut cases, 
in accordance with data which I have given and which we have 
obtained not by abstract reasoning, but by studying one thousand 
seven hundred and eleven individuals in one year, comprising 
sound, insane, and criminal. To me, initiated as I am in the 
positive method, this fact of itself has more value than a hundred 
volumes of our adversaries' reasonings; it is enough to prove the 
truth of criminal anthropology and the actuality of the criminal 
type, notwithstanding errors of detail, which are indeed here 
present as in all other natural sciences, and notwithstanding all 
the controversial artifices of our opponents. 2 It is true that the 

the Brain and Intellectual Capacity," in "Appleton's Popular Science" (Decem- 
ber, 1898). 

1 Ferri, "La scienza e la vita nella XlXe secolo," Inaugural address at the 
New University of Brussels, in the "Devenir social" (November, 1897). 

2 I shall always remember how, as I studied seven hundred soldiers man by 
man in comparison with seven hundred delinquents one day, there came before 
me and the doctor who was present at these examinations, a soldier obviously of 
the type of the born-criminal, with enormous jaws, extremely developed temples, 
a pale and earthy skin, and a cold and ferocious physiognomy. Well knowing 
that persons who had been convicted of serious offenses were not admitted to the 
army, yet I hazarded the remark to the major that this man must be a murderer. 
In reply to indirect questioning, the soldier told me a few minutes later that he had 
served fifteen years in prison for a murder committed in his childhood. The major 
looked at me in astonishment and I said to myself: "I wish that the critics who have 



§30] FUNDAMENTAL OBJECTIONS TO DATA 61 

adversaries of criminal anthropology after visiting prisons and 
insane asylums assert that they have not found specific character- 
istics among criminals; but that proves only that they have not 
known how to look for them; since being jurists rather than 
anthropologists they have neither scientific knowledge nor ex- 
perience. Yet, to cite a striking example, Professor Canonico, 
doubtless a stranger to anthropological researches and a con- 
vinced partisan of the classical school, but free from controversial 
prejudices, could write the following lines in relating his rapid 
visit to a few prisons in Europe: "I am not a fatalist; but when 
I saw a number of habitual criminals of mature age assembled in 
the same room of the Bruchsaal, I said to myself: 'Do what one 
may these men will always be rogues.' One saw clearly on their 
faces the impress of a defect of balance in their moral faculties." l 

§ 30. Qualitative and Quantitative Disagreements in the Data of Criminal 

Anthropology. 

These form an objection that has received the undeserved 
honor of repetition in every tone and with a more or less accurate 
prodigality of detail. To it, on that account, a few words must 
be devoted, although for some time it has given way before the 
increasingly methodical researches of criminal anthropology. In 
the first place, in every natural science and especially in the bio- 
logical sciences where the complexity of phenomena studied 

never studied a living criminal might be here in hiding to make their reasonings 
and say that criminal anthropology has no foundation." In like manner, in the 
Tivoli House of Correction, in 1889, although the director had told us that there 
were there only little good-for-nothings and no juveniles sentenced for serious 
crimes, I pointed out to my students, among whom was Sighele, a boy who had the 
enormously developed canine teeth and other stigmata of degeneracy, and I de- 
clared him a born-homicide. After questioning him we learned that he was a tran- 
sient inmate, that he had been sent to the "Generala" of Turin to undergo a. 
sentence because at the age of nine years, he had killed his little brother by crushing 
his head in with a stone. 

In Paris, at the Asylum of St. Anne, during the anthropologico-criminal Con- 
gress and in the presence of Tarde, Lacassagne, and Benedikt, I distinguished by 
the contour of their heads the homicides, from the thieves among the de- 
generates that Magnan showed us. 

In the penitentiary of Civitavecchia as we were about to leave a dormitory, 
it was said that there was no characteristic type there to show the students, when 
I designated a convict of the brigand-assassin type. Upon calling him over to us, 
he told us somewhat reluctantly that he was " the chief of the Carbone brigands." 

Dello Sbarba, "Al penitenziario di Civitavecchia," in the "Scuola positiva" 
(May, 1896), p. 309. 

1 Canonico. "Revista carceraria" (1885), p. 91. 



62 DATA OF CRIMINAL ANTHROPOLOGY [§31 

increase in an extraordinary way, we can find series after series 
of qualitative and quantitative contradictions. Physiology and 
even anatomy, surely are positive and fertile sciences; and yet 
how many differences there are between observers on each point, 
so to speak, of their observations of fact, from the obscure prob- 
lems of cerebral localization down to the modest question of the 
number of bones composing the human skeleton. Why should 
this disagreement in partial results therefore be the death sentence 
of criminal anthropology alone, which is no more and no less guilty 
than every other biological science and which is only in its be- 
ginning? It is precisely in this, as I have said elsewhere, that the 
customary lack of experimental sense among closet critics is 
shown. They argue from data supplied by facts without ever 
personally having verified a single fact. It can easily be under- 
stood how the good logician wishes to find the figures furnished 
by criminal anthropology all in coordination and in agreement, 
well established and symmetrical; such indeed are the indispen- 
sable conditions of every good "a priori" system. But, on the 
other hand, one cannot expect that the reality of facts so multi- 
farious and complex, should show itself in each of the series of 
delinquents observed and in the different series compared, in 
regular formulation, in so many definite figures agreeing mathe- 
matically. Thus what is a defect in the eyes of the syllogistic 
critic becomes evidence to the naturalist that these data are not 
arranged according to preconceptions of the anthropologist but 
are precisely accurate reproductions of the multiple forms of 
nature, in their diversity. It is on this account that we have 
always asserted the necessity of avoiding unilateral views in the 
study of the criminal and crime and of understanding all of the 
most diversified manifestations, personal and real, organic and 
psychic, physical and social, which (unless artfully manipulated) 
by their nature cannot be formulated into figures which are 
identical and in perfect agreement with a given percentage. 

§ 31. Disagreement in the Data of Anthropology More Apparent 
Than Real. 

It often happens that the differences between the results of 
two observers are only apparent and may be rescinded by experi- 
ment. In this connection I should mention two defects in the 
method pursued by many criminal anthropologists, defects which 
have not been objected to by our critics, but which lead to dis- 



§31] FUNDAMENTAL OBJECTIONS TO DATA 63 

cordances and contradictions which are not true to fact. 1 One 
of these defects is the measuring of skulls in order to determine 
the cranial capacity of criminals without knowing anything of 
the stature and respective ages of the subjects, whereas there is 
a settled connection between the different anthropological charac- 
teristics, the capacity of the skull, for instance, being definitely 
related to the age and especially to the stature. Again, in like 
manner the breadth of the jaw and of the forehead must be con- 
sidered with the larger or smaller formation of the skull, i.e., with 
the cephalic index, — and so on as I have shown in my study on 
homicide. Hence it is that the discordance is not effective and 
real but may depend on differences of stature and age for the differ- 
ent series of skulls studied. The second defect, of which Marro, 
among others, is guilty, and which leads to apparent discrepancies, 
is the study of criminals regardless of whether one or another of 
the fundamental types predominates in the series studied; that is, 
the criminal-born type with predominance of the biological fac- 
tors or the type of the occasional delinquent with a contrary 
predominance of the social factors. It is, indeed, certain that 
if attention be paid to this and if one studies only a series of born- 
criminals, whatever be the crimes of which they have been con- 
victed, the biological anomalies will be much more frequent than 
if a series of occasional delinquents be studied. So true is this, 
that in reality the legal and objective classification, such, for 
example, as Marro establishes for the different categories of sub- 
jects examined by him according to the quality of their crime, is 
not by any means the best; but it is much more important that 
criminal anthropologists, in accordance with subjective and 
psychological criteria and even in accordance with the data of 
relapsed criminals, should distinguish the basic differences between 
delinquents in whom a congenital tendency prevails and those 
whom the impulsion of surroundings has controlled. Finally, 
there are forceful instances which further show how these dis- 
crepancies disappear, especially when the serial method is applied. 
This is exactly what occurred in reference to cranial capacity, 
which, as now fixed, shows in delinquents as compared with 
normal men (condition of age, stature, province, etc., being 
equal) an unusual frequency of heads either too large or too 
small. 

1 On the method in criminal anthropological researches see Ferri, "L'Omicidio," 
pp. 100 et seq. 



64 DATA OF CRIMINAL ANTHROPOLOGY [§ 32 



§ 32. Mis citation as the' Basis of Criticism of the Use of Anthropological 

Data. 

The most typical instance, however, of biased and superficial 
criticism directed at criminal anthropology from this standpoint 
is to be found in certain particular objections which proceed 
solely from the habit of neglecting the other elements which 
concur in the determination of criminal characteristics. Tarde, 
in formulating one of these objections, — afterwards repeated 
to excess and without reflection by other critics as if to prove to 
Tarde the truth of his observations on the contagiousness of imi- 
tation in social life, — said: "Women present some striking 
resemblances to the born criminal, but this does not prevent them 
from being impelled to crime only one fourth as frequently as men; 
and I might add that they are four times more often impelled 
towards good. They are more prognathic than men and yet 
(Topinard) their skulls are smaller and their brain less heavy, 
even with equal stature; their cerebral forms have something of 
the infantile and embryonic; they are less adroit, more often 
left-handed or ambidexterous; their feet are, if one may say so, 
flatter and less arched; finally, they have less muscular strength 
and are as completely devoid of beard as they are richly endowed 
with hair. Now these are so many characteristics of the criminal. 
Moreover, they have also improvidence and vanity, two traits 
that Ferri rightly indicates as dominant in criminals; again, there 
is the same sterility of invention; the same tendency to imitation; 
the same weak and limited tenacity of will. But, on the other 
hand, woman is eminently good and affectionate and this single 
difference suffices to counterbalance all of the preceding analogies. 
Moreover, she is attached to the traditions of her family, her re- 
ligion, and her national customs and she defers to public opinion. 
In this she is also widely differentiated from the criminal, in spite 
of some superstitions which often persist in him; but in this she 
approximates the savage, the good savage to whom she has a much 
greater resemblance than to the criminal." 1 Colajanni also, 
after reproducing this objection with much detail, thus concludes: 
"Let us admit it: the sexual contradiction is the strangest of all 
and fittingly supplements the series of contradictions in criminal 
anthropology." 2 Sergi has made fine and caustic replies to all 

1 Tarde, "La criminalite comparee" (Paris, 1886), p. 46. 

2 Colajanni, "Sociologia crimiuale," 1, 299. 



§32] FUNDAMENTAL OBJECTIONS TO DATA 65 

these attacks, in not only disputing the scientific accuracy of 
Tarde's assertions of the characteristic peculiarities of women and 
of the fact that the connection is found in savages, but also in 
calling attention to the fact that the objection has a slight basic 
defect in that it neglects the difference of sex as an element of 
comparison. His conclusion is as follows: "Woman is not a 
facsimile of the savage or of prehistoric man, but like her an- 
cestors she has sexual characteristics peculiarly her own and she 
possesses, by heredity, the tendencies which are inherent in those 
characteristics. These are, as Darwin would say, secondary 
characteristics of sexuality which are common to savage women 
and civilized women and which Tarde mistakes for atavistic 
traits." l Nor is this all*: it might be observed that "if woman 
in society supplies only an insignificant quota in the figures of 
crime, she does indeed fully manifest in prostitution the degen- 
eracy peculiar to her sex"; but here again, as always, we should 
repeat that crime is not the effect of biological characteristics 
alone but is the resultant of these characteristics in cooperation 
with physical and social factors. Hence, while the profoundly 
different medium in which woman lives counterbalances the im- 
pulsion of biological factors in her, yet this does not contradict 
at all criminal anthropological inductions on the natural genesis 
of crime; for this genesis, let us once more repeat, is not so one- 
sided, so clean-cut, and so exclusively organic as our critics, for 
the convenience of controversy, persist in supposing. Colajanni 
makes us another objection of the same kind when he asserts 
that "contemporaneous man does not differ from prehistoric 
man in fundamental morphological characteristics, within the 
limits of the same race; whence the legitimate inference that 
physical evolution does not move in parallel lines with physico- 
moral evolution." 2 Here again, without going into the details 
of particular facts which might be used against him and which 
differ from the facts collected by him, the rejoinder must be 
made that the objection is baseless because one-sided. It is 
well known that organic racial traits are very stable: Phoenician 
skulls excavated in Apulia show the same general characteristics 
as those of the modern inhabitants of that region; and there are 
a thousand instances of the same kind. But are not the psychic 
traits of the race just as stable, especially those that are funda- 

1 Sergi, "Le degenerazioni umane" (Milan, 1889), p. 137. 

2 Colajanni, "Sociologia criminale," 1, 323. 



66 DATA OF CRIMINAL ANTHROPOLOGY [§ 32 

mental? Frenchmen of to-day answer the psychological descrip- 
tion that Julius Caesar gave of the Gauls, and the Germans 
answer the description that Tacitus gave of their ancestors; * and 
so in our own domain I have largely explained the oasis of lesser 
criminality in eastern Sicily as compared with western Sicily and 
in Apulia in comparison with neighboring regions, by the per- 
manence of the ethnic traits both organic and psychic of the 
Greek elements that peopled those countries. 2 There is therefore 
no lack of harmony between organic evolution and psychic evolu- 
tion: further, by organic evolution one should not, like Colajanni, 
understand exclusively the external morphological characteristics 
but also those which are histological and physiological. More- 
over, how can one by simple reasoning reach "a legitimate infer- 
ence " when we know that the most important biological elements 
are subject to the slightest variations, but that vice versa these 
slight variations produce much greater effects than much more 
considerable variations of the other elements. That the legs of 
one man should be twenty centimeters longer than those of an- 
other has very little influence on the general and psychic develop- 
ment of either. But when one man has as little as one cubic 
centimeter more brain than another man, other things being 
equal, there is a very considerable and quite visible influence, 
particularly on the psychic and social state. Again, when an 
hypothesis such as that of Darwin and Spencer explains nine 
hundred and ninety facts out of a thousand, because the ten 
facts are insufficiently proved, it is not permissible to resort to 
"the legitimate inference" that therefore a single fact is worth 
more than one hundred theories, although drawn from other 
facts. Before denying the hypothesis there should be considered 
whether these ten facts do not correct the hypothesis, since it 
often happens that they are in disagreement only with the rigid 
and incomplete interpretation which the critics are pleased to give 
to these hypotheses. In illustration I may cite another fact 
which I have observed in criminals and which is so essentially 
involved with the laws of evolution that I cannot omit mentioning 
it. 3 It is established that, from mammals to man and among 
the human species from the inferior races to the superior, there 
is a correlative development of the skull and face (from the eye- 

1 FouilUe, "La psychologie du peuple francais" (Paris, Alcan, 1898). 

2 Ferri, " L'Omicidio, " pp. 263, 264. 

3 See Ferri, "L'Omicidio," which deals with facts of this kind. 



§32] FUNDAMENTAL OBJECTIONS TO DATA 67 

brows to the chin) by virtue of which, in the make-up of the head, 
the face decreases more and more in proportion to the size of the 
skull. It suffices to glance at the head of a horse and the head of 
a man to note that the face of the horse occupies two thirds, 
leaving only one third for the cranial ovoid, while in man there is 
about the same distance from the eyebrows to the top of the 
head as from the chin to the eyebrows. In savages, save for in- 
evitable exceptions, it is well known that the development of the 
face is enormous in comparison with that of the skull. There is 
this same development in microcephalic idiots who incontestably 
represent atavistic return to inferior species. 1 Among civilized 
races and among the more intelligent and moral individuals of 
these races, the face becomes smaller compared with the skull 
and, moreover, the size of the jaws diminishes. 2 Whatever the 
significance of this fact may be, I have found an enormous devel- 
opment of the face relatively to the skull in criminals when com- 
pared with normal men. 3 Now, in the face of so eloquent a fact, 
isolated though it be, of what value are academic syllogisms or 
litanies of contradictions of detail in a particular anthropological 
result? Again, if Colajanni finally accepted the most striking 
hypothesis of criminal anthropology, namely, that crime is, as 
he says, "a phenomenon of psychic atavism," how can one fail to 
see that organic atavism corresponds to psychic atavism? Fi- 
nally, above all the partial disagreements on each of the basic facts 
of criminal anthropology, we see the predominance of a constant 
and indisputable fact: namely, that all scientific observers of 
criminals compared with normal men, — even those (Heger, 
Bordier, Manouvrier, Fere, or Monti) who reject this or that con- 
clusion of the Italian positive school, — have always found in 
cr imin als undeniable characteristics of even organic inferiority. 
We shall see presently the interpretation that has been given and 
that can be given to these anomalies; but from now on, this 
ultimate and conclusive agreement suffices to take away any 
appearance of scientific value in the specious objection that there 
are contradictions of detail in the various researches of criminal 
anthropology. 

1 One needs only to have seen one, as I did in Turin, to give up every con- 
trary argument. . . .... , 

2 See Ferri, " L'Omicidio," p. 180, where this fact is explained m order 
to destroy the doubts of Spencer as to its biological significance. 

3 See Ferri, "L'Omicidio," illustrations 7 and 8. 



68 DATA OF CRIMINAL ANTHROPOLOGY [§ 33 

§ 33. The Presence of Criminal Traits in the Honest and in the 
Non-Criminal Insane. 

Another very widespread objection to criminal anthropology is 
that anomalies, particularly organic, are not found exclusively 
among criminals; that they occur among honest folk, among the 
non-criminal insane, and among degenerates generally. This criti- 
cism is more serious than all of the preceding objections because it 
is more positive. Moreover, it is related to the last two objections, 
to be considered later, one directed to the criminal type and the 
other to the nature of criminality. The answer which I shall 
make to it should be supplemented by the answer I shall make 
to the other two objections. First of all, let me say that as a 
general rule all sciences which study life phenomena and especially 
those which have man as their object, whether they are physio- 
logical or psychic, are now characterized by the relative in- 
accuracies inseparable from the beginnings of every science. 
Stuart Mill, among others, has fully demonstrated that the im- 
mense variety of elements concurring to constitute a physiological 
or psychic phenomenon is the sole cause that makes it impossible 
under present conditions to calculate them with mathematical 
and quantitative exactness. 1 Even the psychological and social 
sciences will in time reach a quantitative perfection. Of this 
we already see the first examples. In psychology it suffices to 
mention the psycho-physical studies of Fechner, Weber, Delboeuf , 
Mosso, and others, yet they should not be taken at the full value 
first given them. 2 In sociology, even aside from the tentatives 
of Giuseppe Ferrari on "mathematics in history," we have ad- 
vanced through the labors of Quetelet, Guerry, Fayet, Wagner, 
Drobisch, Oettingen, Mayr, Messedaglia, Lombroso, Morselli, 
Tammeo, Lacassagne, Ferri, and others, to a more general use 
of the statistical method applied to the study of moral facts in 
society, as well as the calculation of probabilities. It is not neces- 
sary to mention the works of such authors as Whernell, Cournot, 
Walras, and Jevons who have applied mathematics to political 
economy. The fact that all this scientific movement has not yet 
reached a high degree of certainty does not detract from its 
positive value and the assurance of greater progress. 

1 Mill, "A System of Logic, Ratiocinative and Inductive" (London, 1843), 
Vol. II, Lib. VI, cap. 3. 

2 Fechner, "Elemente der Psychophysik" (Leipzig, 1860), "In Sachen der 
Psychophysik" (1887); "Revision der Hauptpunkte der Psychophysik" (Leip- 



§34-36] FUNDAMENTAL OBJECTIONS TO DATA 



69 



§ 34. Accumulation of Criminal Traits Necessary to Mark the Criminal. 

But let us see what force there really is to the first part of this 
objection. 

Generally there is to be found in the honest man a single one 
or a very few of those characteristics which are found together 
in every criminal, or rather in each of the criminals who form a 
special class, by reason of inborn and particularly serious anom- 
alies, in the mass of criminals. Anthropologists unanimously 
admit that the important thing in the significance of the anom- 
alies observed in criminals, as in the insane, is the accumulation 
in great or less degree of these anomalies in the same individual. 1 
It should be noted that laymen often attach an undeserved im- 
portance to certain characteristics, simply because they are the 
most obvious. It is not unusual for one to think that he has found 
the criminal type in a man simply because of the bloodshot eyes, 
deformed mouth, uncouth beard, etc., whereas these peculiarities 
have no significance to the anthropologist. 

§ 35. Counterbalancing of Criminal by Other Traits. 
When some of the characteristics observable in criminals are 
found in an honest man, very often the expression of the physiog- 
nomy or the other anthropological traits immediately rectify an 
erroneous judgment based on first appearances. 

§ 36. Variable Predominances of Parents in Offspring. 
When these other corrective craniological or physiognomic 
elements are absent, it should be remembered that one of the 
laws of heredity, both organic and psychic, is the variable pre- 
dominance of each of the two parents in the transmission of their 
traits to their offspring. It may, indeed, happen that one of the 
parents has transmitted the abnormal exterior forms while the 

zig, 1883); Delboeuf, "Recherches theoriques et experimentales sur la mesure des 
l sensations' 3 (Brussels, 1873); G. E. Midler, "Zur Grundlegung der Psychophysik : 
! critische Beitrage" (Berlin, 1878); Mosso, "La circolazione del sangue nel cervello 

dell'uomo, ricerche sfigmografiche" (Rome, 1880); Seppilli, "Le basi fisiche delle 

funzioni mentali," in the R. F. S., II, 1. For the great contemporary movement 
! of employing measuring processes in the study of experimental psychology, see 

Binet, "L'annee psychologique " (Paris, 1894 et seq.), with important original 

monographs and a very ample bibliography. 

1 Mingazzini, "II cervello in relazione ai fenomeni psichici" (Turin, 1895), 

p. 197. As to abnormal characteristics found in honest men, see Lombroso, 

"Uomo delinquente, " I, 103. 



70 DATA OF CRIMINAL ANTHROPOLOGY [§37,38 

other has transmitted the normal nervous (and hence, psychic) 
constitution. This is a fact scientifically determined, notwith- 
standing the darkness in which these studies are buried. 1 There 
are, however, unique and rare cases, while in the others the ex- 
ception is only apparent for reasons which will now be given. 

§ 37. Criminal Traits So Called Do not Necessarily Result in Crime. 

One should not attribute to anthropological studies, as do 
laymen, the pretensions of the old phrenology, which, like part of 
Gall's intuitions on the relation between various cerebral organs 
and psychic activities, reached the exaggerated conclusion which 
is all that laymen have retained of them, while science, on the 
contrary, has condemned them. 2 The presence of such and such 
anomalies in criminals, does not mean that these anomalies (unless 
they constitute the criminal type in a striking manner) are abso- 
lutely and exclusively criminal symptoms. These are anomalies, 
the reaction of which may manifest itself in the life of the individ- 
ual not only by crime, but by insanity, suicide, prostitution, or 
simply by an eccentric character or an immorality which falls 
short of those extreme degrees. Crime in man is not the exclusive 
effect of mere biological conditions : exterior circumstances, either 
physical or social, are needed to transform them into criminal 
activity. 

§ 38. Influence of Circumstances in Restraining the Criminal. 

It should be remembered that a man may be innocent according 
to the penal code, having never committed a robbery, a murder, 
or a criminal assault, without, on that account, being normal. In 
the higher classes, especially, criminal instincts may be smoth- 
ered by environment (wealth, power, or the greater influence of 
public opinion). This is why there is a face which is, as we shall 
see, the inverse of the face of the occasional criminal : I mean the 
face of the man who is criminal-born and is yet preserved from 

1 Ribot, "L'heredite psychologique," 2d ed. (Paris, 1882), pp. 181, 182, 203, 
396; Spencer, "Essays"; Lucas, "Traite philosophique et physiologique de l'he- 
redite naturelle" (Paris, 1847-50), I, pp. 194, 219; Sergi, "Le degenerazioni 
umane," p. 27. 

2 Lombroso, in the " Enciclopedia medica italiana'' (Vallardi, 1875), Article 
"Cranio," p. 193; Verga, "II cranio," in the "Archivio italiano per le maladie ner- 
vose" (1882), II; Dally, Article " Craniologie," in the " Dictionnaire encyclo- 
pedique des Sciences medicales," Vol. XXII (Paris, 1879), p. 693; Bastian, "Le 
cerveau organe de la pensee chez 1'homme et chez les animaux" (Paris, 1882), II, 
Ch. XXV. 



§39,40] FUNDAMENTAL OBJECTIONS TO DATA 71 

crime by the favorable circumstances in which he finds himself. 
How many there are who have never stolen because they swim in 
opulence and yet, had they been born poor, would fill the prisons! 1 
Or again, these criminal instincts are given vent under veiled forms 
and thus escape the criminal code. Instead of stabbing his vic- 
tim, he entraps him in perilous enterprises. Instead of being 
robbed on the highways, people are fleeced in the gambling of the 
exchanges. Instead of being raped, an unfortunate woman is 
seduced only to be deceived and abandoned. Side by side with 
legal and manifest wrongs are those which are social and hidden; 
and it is hard to say which are the more numerous. 2 

§ 39. Possibility of Crime Existent in a Man of Criminal Traits at 

All Ages. 

There remain two practical and decisive considerations. 

We do not know if the man who has these anthropological 
traits and who has hitherto been honest, will be honest the rest 
of his life. Statistics show that there is a predominance of cer- 
tain crimes at different ages; and if, as a general rule, the criminal 
does not show his tendencies in early life, he may have remained 
honest up to a certain age, by reason of favorable circumstances 
(and the same may be said of insanity or suicide), but finally 
yields to his inborn instincts, the symptoms of which already 
existed in these abnormal characteristics. 3 

§ 40. Apparent Honesty in Face of Anthropological Data Often Deceptive. 

But above all we do not know with certainty that the individ- 
ual in whom these characteristics are noted, is really honest, as 
we believe him to be. It is well known that many of the most 
serious crimes are committed without becoming known or without 
the detection of the perpetrators. Furthermore, once the de- 

1 Lombroso, "Delinquente d'occassione," A. P. (1881), II, 3, p. 323. 

2 I shall return shortly to this assertion (already advanced at p. 103 of my 3d 
edition) in treating of the natural definition of crime and again in discussing Durk- 
heim's idea on the "social normality of crime." As to the existence of latent crim- 
inals or of pseudo-honest people, I asserted it in my second edition in 1884 (p. 198) 
before Maudsley, "Remarks on Crime and Criminals," in the "Journal of Mental 
Sciences" (July, 1888), and Corre, in "Les criminels" (Paris, 1889), p. 359, were 
of the few who observed the same fact. It has since been frequently referred to 
down to the recent monographs of Pinsero, de Ferriani, d'Angiolella and the post- 
humous work of Poletti. Of these I shall speak presently. 

3 See a striking case in Aly Belfadel, "Prevision verifiee de delinquence chez 
un individu du type criminel," A. P., XIX, 28. 



72 DATA OF CRIMINAL ANTHROPOLOGY [§ 40 

tected delinquents are released from prison, they all mingle with 
society, undistinguished from honest folk by those who are 
ignorant of their antecedents. While there are many of them 
who are only occasional delinquents and who have committed 
only slight crimes, this is not true of all. There are therefore two 
categories of real delinquents who have undergone their punish- 
ment, who are able to pass for honest men and present an 
apparent exception, but in reality are a confirmation of the con- 
clusions of anthropology. 1 While these facts show on the one 
hand that this oft-repeated objection reduces itself to a very few 
real exceptions and these explainable by the law of heredity, on 
the other hand it supplies the means of fixing from now on the 
generic value of the different conclusions of anthropology. Thus, 
when it is said that delinquents present certain abnormal charac- 
teristics, it is not meant that these must necessarily be met 
with in all delinquents and never met with in non-delinquents. 
The observation has an entirely relative value.- But it is not 
on that account less positive or less conclusive — implying 
as it does a greater frequency of these characteristics in the 
delinquent compared with the normal man. It has also an 
individual value along with its collective value, in cases where 
an extraordinary reunion of anomalies is found in the sane 
individual; since in such case the probability and the plenitude 
of the type increase in a geometrical ratio with the accumulated 
characteristics. As to the second part of the objection which 
bears on the point that the anomalies of delinquents are also 
found in the non-delinquent insane and in degenerates in general, 
it is connected, as we shall see, with the opinion according to 
which congenital delinquency is only a branch of the trunk from 
which insanity springs, or rather, that it is nothing else than one 
of the numerous forms of general degeneracy. As those who 
contradict us admit at least the fundamental affirmation that 
the delinquent is more or less different physically and psychically 

1 In accordance with some statistical researches which I shall disclose elsewhere 
in connection with the social factors of homicide, I believe that approximately in 
a hundred male Italians over fifteen years of age, there are five unknown delin- 
quents. I have calculated this figure with striking precision even in the case of 
the seven hundred soldiers whom I studied in comparison with seven hundred 
convicts. In accordance to this one readily sees with what great prudence one 
should accept the proportion of anthropological characteristics in the normal per- 
sons studied; for instance in the hospitals, poor houses, etc., where there are really 
five per cent, and perhaps ten per cent, of unknown delinquents. The same con- 
clusions are found in Laurent, "Les habitues des prisons" (Lyon, 1890), p. 331. , 



§41] FUNDAMENTAL OBJECTIONS TO DATA 73 

from honest folk, I reserve this point for the examination which 
I shall make of the last objection. 

§ 41. Historical and Anthropological Indetermination of Crime. 

The historical and anthropological indetermination of crime, 
and hence of the criminal, is another capital objection directed 
from various quarters against the indications of criminal an- 
thropology. How, they say, can you fix the characteristics of 
the delinquent, unless you begin by telling us what crime is aside 
from the penal laws? Given the enormous variations that the dif- 
ferences of social evolution have imposed and do impose on 
human acts in different epochs and countries, so that acts to-day 
declared the most criminal, such as parricide, have been and are 
permitted and even recognized as obligatory in other times and 
places; while, vice versa, some acts which are not now classed as 
criminal, such as magic or blasphemy, were the most serious 
delicts in the Europe of the Middle Ages and still are among many 
savages; given this historical indetermination of crime, must not 
the anthropological characteristics of delinquents vary from one 
epoch to another, from one place to another? And in prehistoric 
or savage humanity, where murderers were not delinquents, 
should not the criminal marks be absent? Or, indeed, vice versa, 
did the magicians and heretics of the Middle Ages have these 
characteristics and lose them only when the penal laws became 
more civilized? 

This objection can be understood when it comes from critics 
hostile to the experimental method, who always judge positive 
data according to their abstract and traditional syllogisms; 
but it was not to be expected from critics who understand how 
to follow the positive method, like ourselves, and who approve 
the scientific trend of criminal sociology. The objection, like 
so many others, springs from the incomplete and unilateral idea 
which the critics of criminal anthropology form of the new 
doctrines and which, owing to its convenience in controversy, 
they have been unwilling to renounce. This unilateral idea is, 
that we maintain crime to be exclusively the product of anthropo- 
logical factors and not of physical and social factors as well. And 
yet, for my part, ever since the first edition of this work (1881), 
I have insisted so strongly and so often on the indissoluble associa- 
tion of the three orders of natural factors of criminality, that it 
seems to me our critics should no longer stop their ears to our 



74 DATA OF CRIMINAL ANTHROPOLOGY [§ 42 

fundamental conclusion. Neglecting for the moment the physi- 
cal factors of crime in order to simplify the problem and because 
they are not directly involved in this special argument, we can 
once more repeat that crime in general is the resultant of combined 
biological and social factors, and that the reciprocal influence of 
biological and social factors is different for each of the crimes, not 
only in their different forms of homicide, robbery, and rape, but 
also for the varieties of each criminal species (homicide committed 
from passion, or for the purpose of robbery, or from insanity, or 
for revenge). 

Thus social factors predominate in crimes against property; 
biological factors in crimes against the person; although both 
classes of factors concur always in the natural determination of 
every crime. If we take robbery as an example, it is very evi- 
dent that the influence of the several factors is different in the 
diverse varieties of delinquents who commit it. The influence of 
the social medium is greatest in simple thefts committed through 
occasion or by acquired habit. It is less in those robberies which 
are accompanied by violence to the person, where there is a pre- 
dominance of the organic or psychic temperament of the delin- 
quent. This being the case, let us then begin by replying that the 
characteristics solely organic noted by criminal anthropology in 
delinquents are much more striking and much more frequent in 
these fundamental forms of criminality which are less subject to 
the variations of the social medium. Of these forms, the most 
important are, as I have said elsewhere, homicide and robbery. 

Now, in the first place, it is beyond dispute that, at least in the 
historical evolution of humanity, homicide and robbery which 
are superlatively anti-social, have always been considered as 
crimes, whatever may have been the legal criteria invoked for 
their punishments. 1 

§ 42. Indetermination of Crime not All-inclusive. 
The historical indetermination of crime, therefore, should 
not be affirmed in a general and absolute manner for all crimes. 
It applies especially to those forms of crime (evolutionary crimi- 
nality) which, as we shall see presently, are the special more or less 

1 It is strange, for instance, that Legrain, in "La medicine legale du degenere," 
A. A. C. (Jan. 1894), in order to criticise certain inductions of criminal anthropol- 
ogy, should say: "to speak of the criminal-born amounts to saying that one is born 
with aptitudes for the commission of acts on the value of which the whole world is 



§43] FUNDAMENTAL OBJECTIONS TO DATA 75 

transitory product of particular social conditions. It applies 
only to the crimes and delinquents where the influence of anthropo- 
logical factors is less and, hence, where their presence is less ob- 
vious and less important. On the contrary, in fundamental 
crimes (atavic or anti-human criminality), which, under one name 
or another are suppressed more or less by men either collectively 
or individually but are reproduced in every phase of human evo- 
lution, there is no reason to believe that their perpetrators, if 
subjected to examination, would not show the most characteristic 
marks indicated by anthropology as found in contemporary 
criminals. To cite actual proof, Lombroso noted in twelve skulls 
of delinquents of the Middle Ages, the same anomalies as shown 
by the skulls of modern criminals. For instance, the enormous 
development of the jaws wherein, as I have demonstrated, one 
should note a characteristic mark of homicides committed through 
anti-human fury (revenge, ferocity, or cupidity), being produced 
by the predominance of egotistical functions and instincts and 
manifesting aggressive and violent tendencies, will be found in 
contemporary delinquents (I speak of the sanguinary kind) as 
well as in the men of the Middle Ages and in savages. And this, 
notwithstanding that violent homicide has been known and pun- 
ished in many different ways in the different phases of social 
evolution. The only difference is that the great development of 
the jaws, while the general rule among savage peoples (and hence 
there is no well-defined criminal type among them), becomes an 
exception (through atavism or through pathology) among civi- 
lized peoples. From this comes the teratological distinction of a 
criminal type among the latter. 

§ 43. Connotation of Crime Changes; Not so Criminality. 
This is not all : Even should crimes change absolutely from one 
phase of social evolution to another, it would be an equivocation 
to seek, for instance, in the savage parricide through filial duty, 
the organic and psychic anomalies that we find amqng the parri- 
cides of civilized countries. It is the personal motive of human 
acts, not the name or legal definition, that is of value in criminal 
anthropology. The delinquent in his typical form of the born- 

disputing." How so? We have never dreamed of speaking of the criminal-born 
in connection with debatable crime of purely political or police creation, but 
who will deny, for instance, that murder with violation is not a crime, that is an 
anti-human and anti-social act? jf 



76 DATA OF CRIMINAL ANTHROPOLOGY [§44 

delinquent is, for the criminal anthropologist, an individual with 

anti-social instincts. 1 

§ 44. The Social Environment Gives the Form to Crime Which Has its 
Base in the Biological Factor. 2 

Human social evolution is not, after all, as rapid and unstable 
as the combinations of a moving kaleidoscope. If we consider 
homicide, robbery, rape, or forgery, we will find that from the 
Roman Law to our own day, a period of about twenty centuries, 
the moral, social, and legal conceptions of these crimes are funda- 
mentally the same, whatever may have been the supervening 
changes in the forms of legal and social sanction, opposed to them. 
Sentiments which are the most energetic determinants of human 
action change much less slowly than ideas, both in time and 
space. Thus (a new confirmation of fact), we encounter in the 
effigies of the more cruel and unbalanced Roman emperors (as 
proved by Mayor and Lombroso) the characteristic marks appro- 
priate to the criminals and degenerates of to-day. Be this as it 
may, our conclusion should always be that it is of very little im- 
portance to us to know what anomalies were present in the 
criminals of ten or twelve thousand years ago, or even that they 
are those of contemporary savages, for we are dealing with crim- 
inal sociology for the civilized countries of our own times and the 
near future, without any metaphysical pretension of formulating 
absolute and eternal laws. 

1 V. Chap. Ill, post, where I will explain the ulterior distinction between 
atavic criminality (anti-human or anti-social in the full sense) and evolutionary 
criminality (anti-social in a, restricted and political sense). 

2 The following recent authors are in accord with this thought: Tarde, "Bribes 
de statistique Americaine," in the"Archivio anthropologica criminale" (Novem- 
ber, 1892), p. 692: he says the social factors are the directive causes and the anthro- 
pological and physical factors are the impulsive causes; Dallemagne, "Etiologie 
foncionnelle du crime," in the A. C. (Brussels, 1893), p. 141; Pelmann, "Wis- 
senschaft und criminalitat," in the "Prager Med. Woch." (1895), and A. P. XVII, 
p. 317; Orchanski, "Les criminels russes et la theorie C. Lombroso," in the A. P. 
(1898), IX, 17. 

Even among the critics of criminal anthropology, Nacke has recently been 
forced to declare that in the origin of crime, no less importance should be given to 
the individual factors than to the conditions of the medium. 

Nacke, "Die criminal anthropologic ihre femeren Aufgaben und Verhaltniss 
zur Psychiatrie" (1894), general considerations on criminal psychiatry, in the 
A. C. A. C. (Geneva, 1897), p. 8. He there says: "I now share the opinion of 
those who believe that the individual motive is the principal thing." On the 
same point, see Oitolenghi, "II fattore antropologico e l'ambiente nelle questioni 
sociali," in the "Rivista di Sociologia" (February, 1895), p. 132. 



§45] FUNDAMENTAL OBJECTIONS TO DATA 77 

§ 45. " Mala Prohibita" and "Mala in Se.» 

The objection has another aspect which disputes the very 
foundation of criminal anthropology, by declaring the researches 
unjustified unless, aside from the variable penal laws, precise 
limits are set between crimes and normal action, according to 
natural and social criteria. Garofalo found it necessary to meet 
this difficulty with his definition of "natural crime" as distinct 
from "legal crime." "This," he writes, "is in order that one may 
know what delinquents the naturalist speaks of when he gives 
his connotation of crime. In a word, it is natural crime that must 
be established." 1 He thus takes up under another aspect the 
distinction between natural crimes and those of "purely political 
creation," as Del Lungo called them. Romagnosi had indicated 
this distinction in speaking of "natural crimes and made crimes 
('factices')," and in recalling that the Romans distinguished 
"acts which are considered crimes because the moral sense and 
right conscience reprobate them ('natura turpia sunt'), from those 
which the special circumstances of a people require to be pro- 
hibited for the common safety 2 ('civiliter et quasi more civitatis')." 
This distinction is also established in Anglo-Saxon law between 
"common-law crimes" ("mala in se") and "statutory crimes" 
("mala prohibita"). 3 Garofalo's definition was, however, an 
original and happy attempt, although for my part, as Fioretti 
had already remarked and as I have said elsewhere, I do not feel 
the antecedent necessity for such a definition. In my opinion, 
a definition with which metaphysicians and classical jurists ever 
love to begin, can on the contrary only be the ultimate synthesis. 
It should, therefore, come at the end and not at the beginning 
of the researches of criminal sociology. 4 And this is not only 
because the general reasons of the positive method require it; 

1 Garofalo, " Criminologia", 2d ed. (Turin, 1891), p. 2. 

2 Romagnosi, "Genesi del diritto penali." §1545; Capobianco, "II diritto 
penale di Roma in con fronto al diritto penale vigente e alle teorie della scuola 
positiva" (Florence, 1894), p. 163. 

3 Holmes, "The Common Law" (Boston, 1881); Harris' " Principles of the 
Criminal Law" (New ed. London, 1881-9). 

4 Hamon, "Determmisme et responsibility " (Paris, 1898), p. 66, on the con- 
trary, thinks that an antecedent (I was about to say "a priori") definition is nec- 
essary, in order that all may understand the precise object of criminology. But the 
example that he cites; namely, that all chemists call bodies composed of an acid 
and a base salts, only confirms my thought. Chemists reached agreement on this 
definition of salts, not before, but after long analytical labors carried on with the 
existence of this definition. 



78 DATA OF CRIMINAL ANTHROPOLOGY [§ 46 

but also because the difficulty raised by opponents and combated 
by Garofalo is not serious. Tarde, in speaking of a work of Beau- 
sire, who attributes great importance to the new ideas and who 
concerns himself also with Garofalo's definition of natural crime, 
declares that to him crime is always "a wilful violation (he does 
not say a free violation) of law." l 

§ 46. Juridical Crime and the Criminal from a Sociological Point of View. 

Now this is remaining in the old circle where crime is what the 
legislator punishes; and one thus only perpetuates (and this was 
logical in the classical school) that most ancient principle, accord- 
ing to which delict is what the "divinity" forbids. There was 
simply a substitution of the "Lord's anointed" for the "divinity," 
and finally, with progressive socialization this became "the legis- 
lator." It is therefore necessary to make the essential difference 
clear between the anthropologico-criminal viewpoint and the 
sociologico-criminal viewpoint. 

In the eyes of the criminal anthropologist, he who slays for 
gain, and he who urges his victim to suicide in order to come into 
an inheritance, are both equally criminal. His object is the study 
of the organic and psychic constitution of each, in so far as this 
constitution is abnormal. Quite different is the criminal soci- 
ologist's point of view relative to the legal and social measures 
which can be derived from this anthropological data and which 
we shall take up in the proper time and place. For we should 
not by a mere reasoning process rush into the conclusion to which 
some critics wish to force us, namely, that according to our thesis 
it would be necessary to imprison all those who show abnormal 
biological characteristics. Let us repeat again that crime is also 
the effect of physical and social as well as biological factors. And, 
as the biological condition does not of itself suffice to cause the 
commission of a crime (it can be neutralized by the action of a 
favorable medium), society may devote itself to these biological 
anomalies in the pedagogical and hygienic order, but never in the 
order of legal repression. In the same way that insanity gives 
rise socially to defensive measures only when manifested by 
mania, so, also, in a social sense, criminal tendencies, even when 
revealed by physiognomic and psychic traits, cannot be the oc- 
casion for repressive measures until manifested in some concrete 

1 Tarde, on Beausire's "Les Principes de droit,'' A. A. C. (July, 1888), pp. 
87-389. 



§47] FUNDAMENTAL OBJECTIONS TO DATA 79 

form, by an aggressive act, — in a crime either attempted or ac- 
complished. For the legislator as well as for the judge and pub- 
lic sentiment, a born-criminal may be legally an honest man. And 
this not so much because he belongs to the band of those who are 
studied as "artful and fortunate delinquents," that is, those who 
are able by cunning and the abuse of power to escape the penalty 
of the law which they have actually violated; x it is principally 
because one may never have violated the penal code and be none- 
theless morally and socially a rascal often endowed with brilliant 
faculties, but certainly worse than many convicts. As epilepsy 
has its psychic equivalents which replace its muscular convul- 
sions, so delinquency has social equivalents which in the more 
cultivated classes replace its brutal, atavic, violent forms with 
anti-social or immoral forms of activity which circumvent the 
law without a frontal attack. 2 Thus rape becomes seduction; 
the prostitute becomes the elegant adulteress and the "demi- 
vierge"; the robber becomes the usurer and the Panama stock- 
jobber; the yeggman becomes the duelist or the colonial or 
warlike adventurer. 

§ 47. The Proper Subject of Criminal Anthropology. 

This, in conclusion, is why this prejudiced objection offered 
to criminal anthropology is not maintainable; not alone because 
for the greater part of the time this science studies the authors of 
crimes which I have called fundamental and relatively constant, — 
homicides, thieves, assassins, and individuals guilty of assault 
and rape, — but because the fact remains that the proper subject 
of criminal anthropology is the antisocial individual in his ten- 
dencies and in his activity. Further, it is evident that (in the ab- 
sence of precise limits, anthropologically and socially speaking, 
between criminals and honest folk) the new researches, by estab- 
lishing the presence or absence of abnormal characteristics in the 
different authors of all the crimes punished in a given penal code, 
supply the criminal sociologist with elements much more positive 
than juridical syllogisms, demanding measures and reforms con- 
formable to the results of criminal anthropology combined with 
the study of the physical and social factors of crime. 

» Ferriani, " Delinquent scaltri e fortunati" (Rome, 1897); Luisa Anzoletti 
"Gliasteroidi della delinquenza," in the "Revista internazionale di science sociale" 
(April, 1897), p. 541; Tarde, "Les transformations de l'impunite," in the A. C. C. 

(15 November, 1898). ,,„.„, „„„, vv w t 

2 Angiolella, "Gli equivalenti della criminahta," A. P. (1889), XX, Fasc. I. 



80 DATA OF CRIMINAL ANTHROPOLOGY [§ 48, 49 

§ 48. Sociological Definition of Crime. 

As to the sociological definition of crime in a naturalistic sense, 
as I shall have no other occasion to deal with it, I will say in pass- 
ing that the definition of Garofalo, original and happy as it is, 
does not seem to me to be complete. In saying that natural crime 
is the "violation of the fundamental altruistic sentiments of pity 
and of probity in the average measure in which they occur in 
civilized humanity, by acts hurtful to the collectivity," only one 
phase of the criminal phenomenon is presented, that is, its op- 
position to certain general sentiments. It is a fundamental but 
an incomplete truth, failing as it does, to consider many other 
sentiments such as modesty, religion, and patriotism. And 
further, these very sentiments of pity and probity in their turn are 
but the hereditary and changeable effects of the social conditions 
of existence in accordance with the different phases of human 
evolution. As early as the first and second editions of this work, 
I placed the positive criterion of natural criminality in these 
conditions of social existence as well as in the social or anti-social 
motives which determine the act. 

§ 49. Criticism of This Sociological Definition of Crime ; Harmless Acts Held 

Criminal. 

An eminent sociologist has offered two objections to this funda- 
mental conception, — objections not drawn from fallen syllogistic 
verbalism, but of a positive kind. We give, he says, an exagger- 
ated part to calculation and reflection in directing social evolution, 
because there are many prohibitions of fact which do not at all 
affect the conditions of individual or social existence. How, 
for instance, can there be any social danger in the fact of touching 
an object which is taboo or of eating certain meats? * It is easy 
to reply that, on the contrary, the criterion of the defense of the 
conditions of existence concedes a great part to the social instinct 
in the interdiction of certain facts which, like the two acts above- 
mentioned, may seem inoffensive in an advanced phase of social 
evolution where they are but mere survivals, but which are re- 
sponsive to obvious social necessities in primitive phases and 
difficult conditions of existence (islands, for example) or of hy- 
giene (hot climates) imposing a punishment which in other times 
and places becomes absurd. 

1 Durkheim, "Division du travail social" (Paris, Alcan, 1893), p. 75. 



§50] FUNDAMENTAL OBJECTIONS TO DATA 81 

§ 50. Criticism of This Sociological Definition of Crime; Inequality of 

Penalty. 

Our attention is called to the fact that certain acts more dan- 
gerous to the conditions of social life (for instance, bankruptcy, 
as compared with homicide) are less severely punished or even 
not at all. To that we reply: Aside from the case where the 
slayer (for instance when there has been provocation) may be 
less severely punished than the fraudulent bankrupt, the criterion 
of social gravity does not consist in the material objective dam- 
age but primarily in the offensive power of the agent. This is 
precisely what the positive school believes, while the classical 
school, spiritualistic though it be, materializes penal justice too 
much by proportioning the penalty to the material consequences 
of the deed. The foundation of natural criminality is, therefore, 
the attempted or consummated attack upon the conditions of 
individual and social existence. Uniting certain elements put 
in evidence by Garofalo, by myself, and by Liszt, and reproducing 
almost identically the terms used by Berenini, 1 Colajanni finally 
gives a definition of natural crime which seems to me positive 
and complete: "Punishable acts (delicts) are those which, deter- 
mined by individual and anti-social motives, disturb the conditions 
of existence and shock the average morality of a given people at 
a given moment." 2 Yet a multitude of anti-social and immoral 
acts do not, on that sole account, enter into the number of the 
crimes designated by the law as punishable. And it may happen 
that punishment may not be the most appropriate social remedy 
for those which do so enter. That is, we impinge here upon the 
distinction between civil and criminal law, between prevention 
and repression, a subject which I shall take up in treating of re- 
sponsibility. 3 Without passing in review here all of the definitions 
which have been given, and having clearly indicated above what 
my opinion is, I will consider only three typical definitions; the 
first, Proal's eclectic; the second, Durkheim's sociological; and 
the third, Bahar's biological definition. 

1 Berenini. "Offese e diffese" (Parma, 1886), Vol. I, p. 39. 

2 Colajanni, "Sociologia criminale," I, p. 64. 

3 See the Italian editions, where this subject, omitted by Ferri in the later 
French edition, was inserted. 



82 DATA OF CRIMINAL ANTHROPOLOGY [§ 51, 52 

§ 61. Eclectic Definition of Crime; Proal. 

Proal, like many other eclectics, starting with the idea of estab- 
lishing the substance of crime aside from and transcendant to 
all positive penal laws, does not in reality emerge from the criteria 
of spiritualism or juridico-traditional philosophy. He takes up 
the idea of Pellegrino Rossi, according to whom crime is "the 
violation of a duty," and he defines it as "the violation of a social 
duty imposed for the preservation of society," which is the defini- 
tion contained in the first article of the Penal Code of Neufchatel : 
"Crime is the violation of the duties imposed by the law in the 
interest of social order." 1 This definition is equivocal: either 
there is question of a "social duty" not enforced by political law, 
and in that case it is a more vague expression than that anti- 
social quality in th« act and its motives which constitutes the 
nucleus of our definition; or, else, there is question of a social 
duty strengthened by the sanction of the penal law and in that 
event it lapses again into the empirical conception of the juris- 
consults. 

§ 52. Durkheim's Definition of Crime. 

Durkheim, who is the most original and the most genuine posi- 
tivist (in the larger sense and not that employed by Compte) of con- 
temporary French sociologists, after repeating with us that Garo- 
falo's definition is incomplete, finally says: "An act is criminal 
when it wounds the vigorous and definite (?) states of the collective 
conscience." If we have attacked the preceding formula for in- 
completeness, this with its lack of precision is far from completing 
it. And further, in Durkheim's sociological system, it is worth- 
less, for he, with his accurate conception that sociological facts 
should be examined objectively (meaning by sociological fact 
"every rule of conduct to which is attached a sanction spread 
through the collective conscience"), concludes that all crimes, 
even those which offend no collective sentiment, belong in differ- 
ent degrees to the same category and that, for this reason, "what- 
ever be its varieties, crime is ever essentially the same." 2 While 
in an exclusively sociologico- juridical domain, that may be exact 
(and I have always maintained that from the juridico-social 
point of view there is only a difference of degree between crimes 

1 Proal, "Le crime et la peine" (Paris, Alcan, 1894), p. 500. 

2 Durkheim, "De la division du travail social," pp. 27, 77, 85, 88; "Regies de 
la methode sociologique," p. 51. 



§53] FUNDAMENTAL OBJECTIONS TO DATA 83 

and contraventions of police), in the anthropologico-social do- 
main, it amounts to a simultaneous denial and assertion of the 
necessity of scientific analysis. It is the same thing as if a chemist 
should say that all composite bodies are composite in different 
degrees and that it is therefore futile to seek to distinguish or 
classify their elements. Durkheim is right, however, in his 
attack on those authors who, like Bastien and Tarde, dabble in 
social psychologism and say that social facts are the effect and 
reaction of psychic facts and that they do not in themselves pos- 
sess special and objective conditions of existence acting and react- 
ing on psychic facts; but he is wrong when he forgets (as do a 
number of theoretical socialists, aside from the sociologists) that 
social facts can only possess a relatively autonomous existence; 
because society has its base and its roots in the biological facts 
of anthropology. 

§ 53. Biological Definition of Crime; Bahar. 

According to Bahar " Crime is the expression of the impotence 
of the individual to renounce anthropophagy (cannibalism, direct 
or indirect attacks on human life); it consists in satisfying our 
instincts and passions on our fellow man instead of exacting the 
satisfaction of our needs from material things." l It is obvious 
that, by a defect contrary to that of Durkheim's, crime is here 
considered only under an exclusively biological aspect; whereas 
we have always maintained (and Manouvrier 2 is in error in sup- 
porting this idea in opposition to the positivist doctrines) that 
crime is a social phenomenon, because without life in society it 
is inconceivable either in animals or in men. While Manouvrier 
concludes that, for that reason, crime is the exclusive product of 
social factors (because it is a social phenomenon) ; we contend, in 
partial disagreement with both Manouvrier and Bahar, that while 
crime is a social phenomenon, it is nevertheless also the biological 
manifestation of one or many individuals, and, hence, it is error 
to attribute its origin exclusively to sociological or biological 
causes since these two indissolubly interwoven causes concur in 
producing it. 

1 Bahar, "Une nouvelle definition du crime basee sur la science biologique," 
in "Revue penitentiaire" (1895), p. 739. 

2 Manouvrier, "Les aptitudes et Ies actes," in the "Bulletin de la Society 
d'anthropologie" (Paris, 1809), and "l'Ere nouvelle" (October, 1893), reiterated 
in the "Genese normale due crime," B. S. A. (15 September, 1893, and March, 
1894). 



84 DATA OF CRIMINAL ANTHROPOLOGY [§ 5 

§ 54. Sociological and Biological Bases of Crime. 

Exactly for that reason, I have called crime a natural and social 
phenomenon, which is not a mere verbal juxtaposition of two* 
heterogeneous qualities, as Carnevale l thought because he was 
unable to see summed up in this expression the fundamental 
induction of modern science, — an induction whereby every order 
of complex and higher phenomena, far from excluding the under- 
lying order of more simple phenomena, embraces it and is rooted 
in it, according to the law of natural development formulated 
by Ardigo: namely, that every later and more distinct phase 
follows, without destroying or eliminating, preceding and indis- 
tinct phases of cosmic, biological, and sociological evolution. 2 
Hence there can be no social fact without it being at the same time 
a biological fact, with something additional; and this in turn is 
impossible unless it is at the same time a physico-chemical fact, 
with something added; and this latter is a cosmo-telluric fact, 
with something additional. The something additional constitutes 
the object and justification of the special science for each order 
of facts; but the very much more which constitutes its base and 
makes.it possible, should not be forgotten. None of the defini- 
tions which have been given for crime responds to this fundamen- 
tal induction on the naturalness and continuity of the phenomena 
of the universe, in the gradation of their increasingly complex 
orders, from cosmic life to physico-chemical and to biologico-social 
life. For, even when the definitions are exact in themselves, 
they throw fight on only some element or aspect of the criminal 
phenomenon without giving a complete idea of it. The one which 
does give a complete idea of it and which is responsive to this 
induction, is Berenini's definition and it is also mine. It responds 
not only to the exigencies of science but also of practicability as 
we shall see later. That criminal science, in its definition of 
crime, should have thus reached a fertile and decisive conclusion 
results from the following consideration which is quite essential. 
In the same way that an evolution and integration of fundamental 
doctrines have taken place in sociology where determinism and 
scientific explanation of social facts first appeared under the most 
superficial conditions, because most apparent even to the sense 

1 Carnevale, "II naturalismo nel diritto criminate," in the "Giustizia penale," 
1895, p. 575. 

2 Ardigo, "La formazione naturale," Vol. II, of his "Opere" (Padua, 1887). 



§55] FUNDAMENTAL OBJECTIONS OF DATA 85 

of the community (according to Compte, ideas), and then under 
conditions less superficial (according to Spencer the sentiments 
from which ideas germinate), and finally in the really fundamental 
conditions of individual and collective life (according to Marx, 
the needs, from which spring sentiments and ideas); so also, in 
the determination of crime and the criminal as the object of 
criminal anthropology, a beginning was made by pointing out the 
most superficial and apparent conditions (according to Tarde, 
Vaccaro, and Proal, the interdiction provided by the law, which 
is really an intellectual operation, a manifestition of ideas) ; then 
determinants of this interdiction were pointed out (according to 
Garofalo, Durkheim, and Severi, the sentiments); but finally, 
it is necessary to recognize in the condition of existence the funda- 
mental determinant from which spring both sentiments and ideas. 

§ 66. Distinction Between Anti-Human and Anti-Social Criminality. 

And since, as I have indicated several times, these conditions 
of existence are individual and social manifestations, we find here 
the root of the basic distinction between atavic or anti-human 
criminality and evolutionary or (in the strict sense of the word) 
anti-social criminality, 1 and which we may again term bio-social 
criminality, when it compromises also the conditions of individual 
existence (for instance, murder, assault, rape, and robbery), and 
social criminality, when it concerns only the conditions of collec- 
tive existence (for instance, political outbreaks and contraven- 
tions). 2 The characteristic elements of natural crime are the 

» V. Cap. HI, Post. 

2 In two recent articles, Tarde has again taken up the notion of crime, "Pro- 
blemes de criminalite," A. A. C. (July, 1898), and "Qu' est-ce que le crime?" R. 
P. (October, 1898). But, while criticising the definitions proposed by Blocq and 
Onanoff, Garofalo and Colajanni, he proposes nothing new. He contents himself 
with a few syllogistic variations of his habitual theme of imitation and imitability 
and in reproducing two of my ideas, asserting that the true natural crimes are 
homicide and theft, adding (as I did in "Justice penale" [Brussels, 1898], pp. 9-10) 
that morality extends ("s'etend") more than it changes ("se transforme"), be- 
cause the notion of "one's neighbor," against whom immoral, criminal, and, hence 
punishable acts are committed, extends progressively from the family to the clan, 
tribe, nation, and humanity. 

In the notion of crime, Tarde notices primarily the two psycho-sociological 
criteria of alarm and indignation. He then devotes himself, as is his habit, to alge- 
braic combinations of the crimes which alarm more than outrage ("indignent"), 
which outrage more than alarm, or which both alarm and outrage in the same 
degree. 

But the phenomenon of indignation is evidently bound to become attenuated 
and disappear with the spread of the conviction (already established in the case 



86 DATA OF CRIMINAL ANTHROPOLOGY [§ 56 

anti-social quality of the determining motives and the attempt 
made upon the conditions of existence (individual or social), 
which imply the element of offense to the average morality of a 
given collective group. When all of these elements are united, 
we have the atavic forms of anti-human criminality; when the 
first (and hence the last) is lacking, we have forms of evolutionary 
or politico-social criminality. 

In the meantime, as a conclusion, we have demonstrated that 
criminal anthropology, whether in studying the authors of funda- 
mental crimes unanimously so considered by all civilized peoples 
for twenty centuries, or in relying on the natural elements of 
anti-social acts, possesses a well marked field of its own, of which 
it furnishes the counterproof of precision (not in an absolute way 
but in the measure proper to all natural sciences), when it es- 
tablishes the want of organic and psychic anomalies in "pseudo- 
criminals," either in those who commit apparently criminal acts, 
obeying social and legitimate motives or under psychic conditions 
which are not pathological but exceptional and transitory, or in 
those who commit acts, which the law punishes but which do not 
offend' the general sentiment of the community. 

§ 56. The Existence of an Anthropological Criminal Type. 

The existence of an anthropological criminal type is the con- 
clusion that most shocks the mental habits and illusions of a more 
or less disguised spiritualism. It is also combated with the 
greatest persistence, but with the most insufficient and least 
varied arguments, by the adversaries of criminal anthropology. 
Topinard goes so far as to dispute the accuracy of the word 
"type" as used by us. 1 But as Lombroso answered him, and 

of the insane who were once hated and dishonored) that crime also is a malady 
independent of the free will of the individual. As to the alarm, which corresponds 
to the positive element we have indicated in the attempt made upon the condi- 
tions of individual or social life, Tarde gives an erroneous analysis because, habit- 
ually seeking to reduce everything to imitation, he begins (R. P., p. 343) with 
the statement " that all collective conscience is formed from ideas which are at first 
individual and are propagated and generalized and then transmitted by tradition 
and hereditary imitation." It is clear, however, that the collective conscience is 
formed simultaneously, or very nearly so, in the individuals composing the group, 
under the suggestion or pressure of the conditions of social existence (save in ex- 
ceptional cases, and, even there, thanks to the predisposition of these conditions 
of collective life), and that it is not an idea born in the brain of an individual "and 
then propagating itself," like the waves of a pond when a stone is thrown into it. 
1 Topinard, "L'anthropologie criminelle," in the "Revue d'anthropologie," 
Nov. 15, 1887. 



§57] FUNDAMENTAL OBJECTIONS TO PATA 87 

Topinard himself wrote, 1 if type means "a sum of distinctive 
characteristics, a sort of average, which Gratiolet called a syn- 
thetic impression," and Saint-Hilaire defines as a sort of fixed 
point and common center around which the differences are but 
deviations in different directions, we use the phrase in its clear 
and precise sense. 2 This is true for the additional reason that, 
as Broca says, "while the type is the sum of characteristics, in 
relation to the group which it characterizes, it is also the sum of 
the most striking and most often repeated traits." The conse- 
quence is that not only in criminal anthropology, but even in 
general anthropology, individuals do not all present a clean-cut 
and complete type. It is purer in some than in others; thus, for 
instance, among the Hebrews in comparison with Aryans, or 
among the Germans in comparison with Italians. In like manner, 
if we visit a prison and restrict ourselves for instance to murder- 
ers (whom I have studied and of whom I can speak not only from 
knowledge acquired from books, which is always incomplete, but 
from personal experience) we can easily distinguish in the multi- 
tude of convicts twenty, thirty or even fifty very marked types 
of individuals who (as I have proved in my visit to prisons) must 
have been sentenced for shedding blood. This fact suffices to 
overturn all of the reasonings of adversaries who have fixed in 
their minds an abstract image of criminals but who have never 
studied the living reality. 3 

§ 57. Physiognomy Most Important in Determining a Criminal. 

I should, however, point out in this connection that the an- 
thropological criminal type results, indeed, from a mass of organic 
characteristics but that the decisive marks are the lines and ex- 
pressions of the physiognomy. The anomalies of the structure and 
osseous form of the cranium and of the body constitute the com- 

1 Topinard, "Elements d' anthropologic generale " (Paris, 1885), p. 191. 

2 Lombroso, "Prefazione alia Vedizione" (Turin, 1897), I, VI. 

3 Let it not be said that in entering a prison we already have fore-knowledge 
that we have to do with criminals. For not only has the objection no force in view 
of the fact that it is possible by external characteristics alone to distinguish the 
assassins, for instance, from all the other criminals; but also because, even in 
the study of normal persons, I have had a striking experience. I have already re- 
ferred to my examination of soldiers, one by one, where a single one presented the 
very clean-cut type of the murderer (retreating forehead, enormous jaws, cold ex- 
pression, earthy pallor, thin lips). After expressing my opinion to the military sur- 
geon who accompanied me, I heard its confirmation by the soldier himself when 
he said that he had been convicted of a murder committed in his infancy. 



88 DATA OF CRIMINAL ANTHROPOLOGY [§ 58 

plement of the central nucleus which is the face. And there 
again certain traits are, according to my experience, at least, 
more characteristic than others, viz : the eyes and the jaw. By 
these two features, especially in well-marked cases, I am able to 
distinguish the sanguinary delinquent from every other. Thus 
the simple thief, who uses cunning but avoids bloodshed and 
violence, can be distinguished from the armed robber who in 
case of necessity does not shrink from murder and who, in spite of 
the similarity of crime and motive, constitutes an anthropological 
type very different from that of the simple thief. I do not pretend 
however that other observers like Lombroso and Marro cannot 
distinguish (by means of characteristics quite reliable and con- 
vincing out of their wider experience) the authors of rapes, typical 
thieves, and many other cases. What I insist upon is the pre- 
dominant value of the face in the diagnosis of the criminal type, 
since by anomalies of the skull and skeleton alone, one can only 
distinguish the degenerate or the abnormal man in general from 
the normal, but cannot by these indications alone distinguish the 
criminal from other degenerates. 1 

§ 58. Objections to the Determination of a Criminal Type. 

Naturally the obvious types are in the minority in every series 
of delinquents. There are two reasons for this, which give an 

1 Sergi, "Le degenerazioni umane," p. 116, while asserting from his own expe- 
riences, the existence of a criminal type, remarks that one should say rather "crim- 
inal physiognomy," as Lombroso himself often uses that expression in the sense of 
type. Nevertheless, Sergi makes an inexact observation in this connection in 
speaking of the data of Marro on the authors of assaults (" blessures," "feriture"), 
who presented to him (as to me) less distinct characteristics than those of mur- 
derers. "Did he (he says) who has simply inflicted a wound stop at that, either 
because he did not wish to sink his poignard deeper or because he only wished to 
pierce the arm and not the intestines or heart? No: the author of a wound is an 
assassin who did not succeed in killing the man he stabbed and he should specifi- 
cally have the marks of the assassin." And yet he has not these marks, and it is 
natural that he should not have them, because the author of a wound, if not dis- 
tinguishable from homicides, is profoundly distinguishable in the generality of 
cases from the assassin, for the latter is, as a general rule, a born-homicide while 
the other is a homicide by occasion if he be not at most simply a violent man who 
strikes without murderous intent in a quarrel, or while gambling, or when drunk, 
etc. ; and that is why he is less abnormal than the born-assassin. 

Apropos of the cri min al type, Virgilio, "Passanante e la natura morbosa del 
delitto" (Rome, 1888), pp. 61, 62, 63, 125 also remarks that an anthropometrical 
type of criminal does not exist (and no one, as far as I know, has asserted that it 
does) in the sense that the anthropometrical data alone could suffice in its deter- 
mination; but he acknowledges and explicitly asserts the existence of the criminal 
type based in anomalies of conformation and physiognomic characteristics. 



§58] FUNDAMENTAL OBJECTIONS TO DATA 89 

opportunity for reply to the principal logical objections that are 
raised against the existence of the criminal type: 1st: It is said 
that as the type is the sum of characteristics and as crime is not 
exclusively the effect of b'ological factors, it is natural that in a 
great many individuals these characteristics, either as the con- 
sequence of other biological influences, such as the central nervous 
influences in opposition to the external conformation, or as the 
effect of environment, may not be accumulated and, hence, present 
an indistinct type. In this very case, in reply, I repeat, less evi- 
dence is not the same as less existence and is only the effect of 
other disturbing causes. 2d: It is objected that the criminal 
type is not met with, in the same frequency in all the anthropo- 
logical categories of born-criminals. Now, whilst in criminals by 
occasion or by the frenzy of passion, who are at the opposite ex- 
treme, the anthropological criminal type either does not exist or 
is met with less often precisely because in them crime is determined 
in a lesser proportion by the biological factor and determined in 
a greater proportion by the action of the physical and social 
medium, as, for example, in the three typical degrees of the man 
who has simply inflicted wounds (in a quarrel and without specific 
intent to kill), of the homicide by occasion, and of the assassin by 
congenital tendency. The specious objections raised against the 
existence of the criminal type are reducible principally to the 
statement that the percentage of each of the critical and physiog- 
nomic characteristics is slight and almost always below fifty per 
cent, so that it does not prove the existence of the type which 
ought to result from say a proportion of seventy, eighty, or ninety 
per cent. 

And if Lombroso himself says that a criminal type is ob- 
served in only forty cases out of a hundred, how can one assert 
its reality? Would one say brachycephalic type, if sixty per cent, 
of the subjects examined were dolicocephalic? This is only an 
equivocation and it comes from forgetting that in the mass of 
criminals there is a great number who are only criminal by oc- 
casion, who do not present a well-defined criminal type, and who, 
in a few cases only, do show it in an attenuated form (such as 
those who have shed blood, who have inflicted blows and knife 
wounds, and homicides by occasion as compared with assassins). 
Hence the type is in fact in a minority, if one observes the whole 
series of all classes of delinquents. But if one should examine a 
hundred born-assassins on the one hand, and the same number of 



90 DATA OF CRIMINAL ANTHROPOLOGY [§ 58 

simple rogues on the other, it is certain that the criminal type of 
the murderer would be found almost without exception among the 
first and never among the second, unless these were murderous 
rogues — something rarely encountered. Of this I have given 
some proofs in establishing the greater frequency of anomalies in 
a series of recidivists compared with a series of non-recidivists 
born in the same provinces. It must be conceded that Lombroso 
himself has to some extent fallen into this mistake; and really, if 
he had more faithfully discriminated among the categories of 
criminals he studied, he would have obtained results much more 
convincing and harmonious than those admittedly striking ones 
which he has published. This is certainly the most fruitful task 
that the criminal anthropologist can henceforth take up, because 
science itself is obedient to the evolutive law of successive differen- 
tiations arising from an anterior state of indistinct homogeneity. 
In truth, when homogeneous categories of criminals have been 
studied, the results have been much more significant. Thus 
Penta, having examined among galley convicts four hundred 
"dangerous criminals," who therefore belonged to the category 
of hereditary delinquents, found that only three per cent, of the 
subjects were free from anomalies while ninety-four per cent, 
presented three or more anomalies united. 1 Moreover, the per- 
centage figures are incontestably reinforced by the following fact : 
assuming that, were it only once in a thousand times, I could tell 
you first what are in my opinion the characteristics, especially of 
face and skull, which denote the born-murderer and that I then in 
a prison could point out an individual possessed of them who had 
been convicted of murder, this fact alone would suffice, against 
all of the quibbles of academic critics, to demonstrate the exis- 
tence of the criminal type. Now, I repeat, that I have had dozens 
of experiences of this kind of which I am ready to make as many 
more tests as may be desired; and this argument will be the most 
persuasive, as it already is, with more or less accuracy, for the 
judges in their courts, and for the police in the detection of the 
criminal in society. 

1 Penta, "Le degenerazioni criminali," in the "Revista d'igiene," 1890. 



§59] FUNDAMENTAL OBJECTIONS TO DATA 91 



§ 69. Objection Based on the Alleged Development of the Thief into the 

Murderer. 

In this connection I recall also an objection that Dubuisson 1 
first, and afterwards Joly 2 attempted to oppose to the existence 
of the criminal type. If the assassin and the thief present an- 
thropological types of such characteristic difference "how can we 
explain the fact, which seems quite certain, that the greater part 
of delinquents begin with theft and finish with murder? Must it 
be admitted that the thief changes his mask in becoming a mur- 
derer? " This is the result of reasoning about delinquents without 
knowing them by direct observation. It is not a fact that the 
majority of delinquents begin as thieves and finish as murderers. 
The famous career of crime in which Farinacio already found an 
argument in favor of Beatrice Cenci has not truth except in a 
special category of delinquents, the habitual, as I shall later ex- 
plain; and even among such it is only by way of exception that 
the thief becomes a murderer. Criminal psychology, and I have 
furnished the proofs in "Omicidio," establishes the fact that 
thieves according to their repugnance or non-repugnance to 
bloodshed form two profoundly different classes. The simple 
thief, confidence man, or fraudulent promoter, may by habit 
reach the point of turbulence ("effraction") or brigandage, but it 
is with difficulty that he reaches the point of homicide committed 
solely and principally to despoil his victim. He may in certain 
cases commit a murder but it is to insure his impunity and he is 
impelled to it by the cries and the resistance of his victim. Quite 
the reverse, the sanguinary thief ("l'escarpe" of the French 
argot) is only a species of assassin and he is such by congenital 
tendency which in most cases is shown suddenly before adult age 
but which may, as a consequence of favorable exterior circum- 
stances, never be actualized or, if at all, only much later. Thus it 
is not a thief who has changed his type but that he really had the 
homicide type before he committed the assassination. This is 
exactly the case when I find a convict in the prisons who shows 
the characteristics of the murderer and when I am told that he has 
been convicted of theft. The thought immediately occurs to me 
that this must be a quite different thief from the offensive pick- 
pocket; and very often, if I push my inquiry, I am told that he 

1 Dubuisson, "Theorie de la responsibility" A. A. C. (January, 1889), p. 37. 

2 75. Joly, "Le crime" (Paris, 1888), p. 179. 



02 DATA OF CRIMINAL ANTHROPOLOGY [§ 60 

has not only been convicted of theft but also for assaults, and even 
for murder. 

§ 60. Objection that the Anthropological is a Professional. 

Other objections to the anthropological criminal type have been 
made which bear on its signification and origin rather than on 
its existence. Thus Tarde, first, and others subsequently have 
said that the criminal type is perhaps a "professional type" of 
which the characteristics distinguishing the delinquent from the 
normal man, are due only to the kind of life and the kind of me- 
dium. And in this sense delinquents, like artists, sailors, hunters, 
soldiers, and lawyers, form a type by themselves. 1 Topinard 
in the same sense makes a further distinction. There are "meso- 
logical types" in general (mountain and malarial types), and there 
are "social types " produced by the impress of difference of occupa- 
tions, habits, and fife. All of these, however, are acquired and 
secondary types of "accidental collectivities," quite different 
from the natural types of family, race, or species; the latter are 
transmissable by heredity, the former are not. The collective 
types do not survive the generation which has seen their birth. 
If the conditions remain the same they are repeated but they do 
not perpetuate themselves. 2 Now among the characteristics 
which constitute the anthropological criminal type, some are 
acquired, like tattooing, gait, sly expression of face, language, and 
scars, but some are congenital, like the anomalies of the cranium, 
of the skeleton, of the physiognomy, the physiological anomalies.' 
One can understand how the habit of crime or a profession can 
impress upon the individual, even in the anatomical order, some 
of these acquired and truly professional marks as the consequence 
of the more frequent use of an organ, for instance the right arm 

1 Tarde, "La criminality comparee," p. 51-53. 

2 Topinard, Rev. d'anthrop. (15 November, 1887), p. 661. 

3 Garofalo maintains that in the determination of the criminal type, predom- 
inance should be given to the psychic traits. I agree and I have agreed with him 
on this point especially when there is question of establishing to what anthropo- 
logical category a particular delinquent belongs and of establishing the measures 
of social defense to be taken against him. But the existence of the anatomical 
and physiognomic type is beyond dispute and even in the practical classifi- 
cation of each delinquent (as Bronardel also said at the Congress of Paris, " Actes," 
p. 169), all of his organic, psychic, and social characteristics should concur as they 
concur, for example, in every medico-legal expert question with respect to the crim- 
inal insane. See Garofalo, report to the Congress of Criminal Anthropology of 
Paris, A. A. C. (May, 1889), and in the same sense see Zuccarelli, "L'anomalo," 
Nos. 5-6 (Naples, 1889), pp. 138-161. 



§60] FUNDAMENTAL OBJECTIONS TO DATA 93 

by the sculptor, the hand in the thief, the third frontal circum- 
volution in a great orator (in the brain of Gambetta for example), 1 
provided, of course, that there is a biological predisposition. And 
consequently the idea of a professional type, not however in an 
absolute sense, is well-founded, when there is discussion of certain 
delinquents by occasion, who have subsequently become habitual 
delinquents, for the reasons which I have given elsewhere and 
which I will state later. But that the kind of life, the profession, 
should be able to give marks foreign and even contrary to the 
organic and psychic activity, such as the enormous jaws and fierce 
expression of murderers (when it would really be to the interest 
of every delinquent to have a physiognomy without any signif- 
icance) or the retreating forehead of thieves, is inadmissable, little 
as one may reflect on it. It is certain that the profession of 
hunter, soldier, or sailor brings about certain acquired marks in 
the general gait, the complexion, and in certain muscles. This 
has been shown by the brilliant art of Meunier for the Belgian 
workmen and of Orsi for the Italian peasants. 2 But in neither the 
hunter, the sailor, nor the miner is the twelfth vertebra lacking 
as Tenchini found it often lacking in criminals. The forehead 
does not become more or less vast nor the cranium, microcephalic 
or oxycephalic as the result of the profession. Further, as Garo- 
falo has very accurately observed, when we have a delinquent 
who from infancy is given up to crime and not only to theft (which 
can be the consequence of congenital tendency or the influence 
of the family or surroundings) but, for instance, to atrocious 
murders, then in what way can the kind of life or the profession 
contribute in impressing upon him that criminal type of which I 
have given examples in the photographs of child-murderers pub- 
lished elsewhere? 3 Finally, Tarde himself makes certain ad- 

1 Manouvrier, "Cerveaux de Gambetta et de Bertillon," in the "Bulletin de 
la Soeiete psycholo-physiologique de Paris" (1889), IV; Laborde "Leon Gambetta" 
(Paris, 1898). 

2 See "The Principal Works of Mbunier" in the "Emporium" (September, 
1898). 

3 As a typical example of congenital criminality, I shall reproduce from a reli- 
able source, a case of remarkably precocious criminality, taking it from Fallot and 
Robiolis, A. A. C. Arch, d'antr. crim. (July, 1896). The spouses X . . . had a little 
girl of seven years, one of two and a half, and a boy of six months. On the 25 Octo- 
ber, 1895, during the absence of the parents, the older girl, seeing that the younger 
had urinated on the floor, scolded her saying that she would tell her mother. Im- 
pelled by this threat the child (two years and a half old!) took up a long knife, » 
kind of butcher knife, which was on the table; and then as the sister stooped to 
wipe up the urine, the child approached and with all her power plunged the knife 



94 DATA OF CRIMINAL ANTHROPOLOGY [§ 60 

missions which destroy all reality of a professional type, taken in 
a sense opposed to the anthropologico-criminal type, and after 
him Topinard, by denying the hereditary transmissibility of the 
professional marks, gives it the "coup de grace." Tarde writes: 1 
"My thought should not be misunderstood: . . . I do not limit my- 
self to simply saying that there are muscular or indentical nervous 
habits born by imitation from the practice of a trade and cap- 
italized into acquired physical traits overlying the innate traits. 
Further, I am persuaded that certain inborn anatomical charac- 
teristics, of an order exclusively vital and not social in their causes, 
are part also of the average marks peculiar to each great profes- 
sion, if not to each great social class." And elsewhere he repeats: 
"Every great social or anti-social profession attracts those who 
have certain dispositions, if the careers are free; and if they are 
closed by castes, then there is an accumulated transmission : thus 
it is that nobles are born courageous, or Hebrews bankers." 2 This 
amounts to saying, and it is perfectly true, that a given man 
becomes a butcher because he has congenital characteristics which 
predispose him to that calling, and that another individual has 
predispositions to become a surgeon, or another, an artist; and 
the same is true of the delinquent. We do not ask anything more 
for the existence of the anthropological criminal type. There is, 
indeed, the mediocre artist who might as well have been a grocer 
and who in vain affects in his profession certain mannerisms like 
those of born-artists, but who can never borrow from them the 
congenital marks, for example those of a genial physiognomy. In 
the same way a stupid person who passes his life in study, may 

into the right part of the thorax. Then she tranquilly put the knife back on the 
table where she had found it. The wound was eight centimeters long, penetrating 
almost to the ribs. If this child was not a born-delinquent, I do not know of any 
use in the observation of facta. The portrait of the child, published in the "Ar- 
chives," shows an enormous development of the frontal sinus, with a very large 
head (probably hydrocephalus), very detached ears, and a savage expression of 
the physiognomy. "Her character," the mother said to the doctors, "is extremely 
violent. She is subject to frequent rages [here is the criminal impulsiveness]. 
She never cries. After stabbing her sister she showed no emotion and no regret. 
She is unusually stubborn." The physicians add: "Our observations confirm 
this statement by the mother. At the first glance one is struck with the grave 
and serious expression of this child's face. Her look is sad and serious and she 
frowns often, which adds to her quasi-ferocious expression." This case (and how 
many others there are!) has more weight in proving the existence of the criminal- 
born and of the criminal type than a volume of arguments. See, for instance, 
Gissey, "Un omicida dodicenne," S. P. (September, 1898). 

1 Tarde, "La criminalite comparee," p. 51. 

2 Tarde, " Criminologie," in the "Revue d'anthropologie" (September, 1888). 



§61] FUNDAMENTAL OBJECTIONS TO DATA 95 

assume certain purely superficial characteristics of a real savant 
such as the scholarly stoop, near-sightedness, or pallor; but do 
what he will he can never have the spacious forehead, the profound 
eye, or the intelligent physiognomy, if he has not received these 
gifts from Mother Nature. Similarly, there is the delinquent who 
is delinquent rather through the complicity of environment than 
through congenital tendency and he may acquire, if he becomes an 
habitual delinquent, certain professional characteristics appro- 
priate to his anti-social calling, which will constitute in him the 
convict type ("penitentiare") observed by Gautier when he spent 
some time in prison as the consequence of a political conviction. 1 
But I repeat, this does not signify that the born-criminal, pro- 
vided from birth with certain radical anatomical and physiognomic 
traits, is a professional type also. One cannot understand how 
Topinard denies the hereditary transmission of professional 
traits, when everybody knows families whose members from ten- 
derest years possess a congenital professional type. Some writers, 
also, who have eagerly seized upon the idea of the professional 
type because of the ordinary prejudice which would make crime 
a purely and exclusively social phenomenon, have nevertheless 
defended the hereditary transmission of professional character- 
istics, against Topinard. 

§ 61. Anthropological Criminal Class — a Restatement. ' 

It is evident therefore that the reality of the anthropological 
criminal type which we maintain for the criminal-born is confirmed 
by the very ones who would wish to deny it. That a particular 
child-murderer should have inherited from his grandparents or 
his parents certain marks of the criminal type for one reason or 
another, together with atavic or pathological or professional anom- 
alies, is of little importance, provided that the absolutely unde- 
niable fact of the congenital criminal type in the anthropological 
sense remains, that is, a physio-psychic predisposition to such or 
such a form of criminality, which the conditions of the telluric and 
social medium can (as often happens) bring to an effective realiza- 
tion, but which they can also (although the case is rare) prevent 
from being realized. Resolving this "quaestio vexata" into its 
simplest terms, we contend that first of all the term should be 
understood to mean the individual in whom the anomalies or 
atavic stigmata, degenerative and pathological, are met with in 

1 Gautier, "Le monde des prisons," in the A. A. C. (1888), pp. 417 et seq. 



96 DATA OF CRIMINAL ANTHROPOLOGY [§ 61 

greater number than in non-delinquent individuals of the same 
social classes and of the same ethnic origin. This truth, which 
is the fundamental discovery of criminal anthropology, is now 
no longer contested by any one (because it is a question of positive 
facts), not even by those who make theoretical objections to the 
idea of the criminal type. In the second place, we maintain, and 
this is the disputed point, that this greater number of anomalies 
in the criminal type (born-criminal) constitutes a real personal 
predisposition to crime, in like manner as the sum of certain other 
well-known organic stigmata give the type of the born-consump- 
tive, that is, the individual predisposed by heredity to tuberculosis. 1 
Now, some men will deny the existence of this clinical type, be- 
cause a born-consumptive fortunate enough to be rich and able to 
live in an hygienically favorable environment reaches an advanced 
age without dying of tuberculosis. It is the same with the crim- 
inal type. The individual, who from birth, by hereditary trans- 
mission (as has been shown a thousand times in the alternations 
of alcoholism, insanity, suicide, moral eccentricity, delinquency, 
and sterility, in certain families tainted with degeneracy) carries 
in his organic and psychic constitution this junction of anomalies, 
is predisposed to crime. He may, if he has the good fortune to 
live in an exceptionally favorable medium, die without ever having 
violated the penal code; but he will, on the contrary, fall into 
natural criminality (anti-human criminality and not merely such 
as consists of contraventions or political heterodoxy) if the con- 
ditions of his environment make his struggles for existence diffi- 
cult. 2 It is conceded that without the complicity of the medium 

1 I made this statement at the Geneva Congress, where my declarations 
on this matter dissipated the clouds of misunderstanding and appeared novel to 
those who were unwilling to recall that I had constantly reiterated them since 
1880. 

2 This predisposition, or lessened physico-psychic resistance to the stimula- 
tion of the medium towards crime, is recognized even by our critics, when they are 
not professedly discussing the criminal type. For instance, by Magnan, "Actes 
du congres de Paris" (Lyon, 1890), p. 58. "The infinite degrees of mental state 
in degenerates present the following modalities: a predominance of the intellectual 
faculties, defective moral condition, criminal degenerates, etc." Buschau, also, 
"Gegenwartige Standpunkt der Kriminal anthropologic" (Cassel, 1893), admits 
that there exists in certain individuals "a lesser psychic resistance which may show 
itself by a nervous and psychic disease or precisely by crime." To the same effect 
is Legrain, "De l'alcoolisme au point de vue de la degeneration, de la morale et 
de la criminalite," "Actes du Congres de Geneve" (1897, p. 162). This is why 
Drill at the Congress of Paris (A. C. A. C. p. 162) said that the organic factor did 
not of itself suffice to engender delinquency without the complicity of the me- 
dium, although producing a more or less marked predisposition to delicts in general 



§61] FUNDAMENTAL OBJECTIONS TO DATA 97 

the born-delinquent does not commit crime, although the slightest 
exterior impulsion is enough to make him yield to his physio- 
psychic predisposition. But in the meantime we notice that he 
does show the criminal type and we say that "heredity is a law 

and to their varieties in particular. . . a predisposition without which the condi- 
tions of the medium would not be sufficient to determine the crime," 

Even at the Congress of Brussels, where it has been said the theory of the born- 
criminal was killed and buried under the blows of syllogisms, the fact is (as stated by 
Van Hamel, p. 270) that the struggle was altogether "between classical jurists and 
anthropologists." Houze and Varnots, while declaring themselves adversaries of the 
criminal type, yet declared that "they joined without reserve in the thesis which 
traces the functional origin of crime to the tyranny of the organism" (Actes, 
Brussels, 1893, p. 122) and formulated the first conclusion of their report, thus: 
"The anatomical type designated by Lombroso as belonging to the born-criminal 
is a composite hybrid product, uniting characteristics drawn from different sources. 
(Eh! What difference does that make?) It is therefore a real (?) type. Even 
admitting that the type exists, it becomes real only in the minority of delinquents (but 
this is precisely because the criminal-born are in the minority in the number of 
delinquents). It must therefore be rejected" (p. 126). And on the contrary I 
say that it must be maintained for the simple reason that it exists and is met 
with. 

Liszt himself, who has made some reputation in Germany by drawing on the 
theories of the positive school with eclectic dilutions a few years ago and without 
then indicating their source, finally notes that social circumstances determine the 
movement of criminality "by their influence on the ascendants of the delinquent 
and at the same time on his innate personality" (A. C. A. C, Brussels, 1893, p. 
92). 

Better still: Tarde, the great master of argument against the criminal type, since 
he says there are no "clean-cut and indisputable anatomical characteristics appro- 
priate to disclose the criminal" (does he pretend that the criminal type in order to 
exist should have two noses and four eyes?) admits that "we are not on that account 
prevented from affirming the existence of organic and physiological predispositions 
to crime," "Actes du Congr. de Paris (Lyon, 1893), p. 199. And the same Tarde, 
when he is not bestride the enchanted broom of abstract syllogisms, and when he 
holds to the description of realities which he has seen as a criminal judge ("juge 
d'instruction"), speaks of an assassin whom he unmasked in these terms: "Among 
these workmen I saw a young and vigorous fellow with the physiognomy of a hyena 
and a sinister and hard look." "Etudes de psychologie sociale" (Paris, 1898), p. 
229. 

This is what may be called an unconscious revelation of the criminal type by 
a man who in words is one of the rudest of adversaries, and naturally if he were 
asked to admit it he would at once build up syllogisms for the construction of a 
gratuitous denial. This is what he did in the session of 18 Nov. 1896, of the Societe 
des prisons at Paris. The report of Motel on the Congress of Geneva was under 
discussion. The advocate Martin, in support of our theories, related a visit he made 
to the House of Correction at Douaires and the fact observed by the director "that 
the physiognomy of a great number of these delinquents remained repulsive in 
spite of all the efforts made for their improvement." Tarde said: "As M. the 
advocate Martin has remarked, there is a bestial type: the forehead is retreating, 
the jaw is often heavy. But (and here is the reasoning of a prejudiced man) if you 
take the most guilty among these juveniles, those who have committed the most 
serious crimes, you will find that they do not always present the most serious 



98 DATA OF CRIMINAL ANTHROPOLOGY [§ 62 

which manifests itself by a tendency." x Further, even among 
domestic animals, there are, as Corre remarks, real born-delin- 
quents, well-known to all trainers, that is, individuals that are 
refractory to all discipline, "individuals that are unconquerable, 
sly, insubordinate." 2 Similarly, in insanity, there is the physio- 
psychic type of the "hereditary insane," i. e., the man predis- 
posed to insanity. And yet, as Maudsley 3 has said, many persons 
with the taint of hereditary insanity, never become violent and 
live a sufficiently regular life, if fortunately they meet with excep- 
tionally favorable circumstances and conditions. Although in 
insanity social causes also have great importance, yet no one any 
longer denies (and this was not the fact in the beginning of modern 
psychiatry) the hereditary predisposition to insanity and the 
"insane temperament." If one comprehends the criminal type 
thus, as the Italian school has always so comprehended it, of what 
importance are syllogistic objections, except as indices of veiled 
spiritualism hostile to the admission of this proof of the depend- 
ance of the physical on the moral, or as ill-founded preoccupations 
of metaphysical socialism which shrinks from the affirmation that 
crime is inevitable and fatal, whatever changes may be brought 
about in the social medium? It is therefore understood that when 
we speak of the criminal type and of the born-criminal, we mean 
the affirmation of a physio-psychic predisposition to crime, which 
in certain individuals may not end in criminal acts (as the pre- 
disposition to insanity may not end in madness), if restrained by 
favorable circumstances of the medium, but which, when these 
circumstances are unfavorable, is none the less the sole positive 
explanation of the anti-human and anti-social activity of the 
delinquent. 

§ 62. Heredity and Environment. 

One can also understand that we assert the "fatal inevitability 
of crime" and that we also recognize, even in our first edition 
(1881), in our theory on the prevention of criminality (" sostitutivi 

anomalies." ("Revue penitentiare" [1896], pp. 1248 and 1252.) Tarde made that 
statement without adducing any proofs, because he has never made a method- 
ical study even of a hundred delinquents, and because he is only a cabinet critic, 
while we not only assert the contrary but we prove it by anthropological researches 
in prisons, insane asylums, and elsewhere. 

1 Pierret, "Les grandes lignes de rheredite" psychopathique," R. S. (22 May, 
1897). 

2 Corre, "Les criminels," p. 372. 

3 Maudsley, "Responsibility in Mental Disease," last chapter. 



§62] FUNDAMENTAL OBJECTIONS TO DATA 99 

penali"), that by changing the environment, influence can be 
exerted (within the limits of individual existence) on the great 
mass of delinquents by occasion and habitual criminals, and in 
the course of a few generations, thanks to heredity, on the class of 
the born-criminal and the born-insane. 1 Observation, therefore, 
does not permit us to suppose, like Manouvrier, "that the same 
individual may act in a thousand different ways according to the 
influences to which he is subject, without on that account under- 
going any physiological or anatomical variation," so that "edu- 
cation, medium, social circumstances may turn a quite honestly 
constituted man into a rascal"; although "man is born a criminal 
just as a dog is born a swimmer, he is always very capable of com- 
mitting a crime." 2 This is not true, for an individual who has not 
the predisposition to crime may in extremely unfavorable circum- 
stances develop more or less violent insanity, or even commit sui- 
cide, but he never becomes a "rascal." One does not become 
insane at will nor does one become criminal at will. Such, there- 
fore, is the last conclusion on the undeniable criminal type. While 
in the born-criminal the origin is almost exclusively biological; 
in occasional delinquents who have become habitual criminals, 
the origin is largely social. Yet even in the latter, as I shall say 
at the proper time, biological influence is not wholly excluded. 
Occasional delinquents, even in similar environment, do not all 
become habitual delinquents, because there are some among them 
who are endowed with a greater biological power of resistance 
to external crime-breeding conditions. This amounts to saying 
that not only among delinquents but also among the professional 
or psychological groups, there exists in certain cases a bio-social 
type in which congenital or acquired characteristics predomi- 

1 Ottolengki, in tabulating the differences of sensibility according to the social 
condition, "Archive de Biologie (1895, XIX, 101), found that in the lower classes 
of society there is a minority of individuals with superior sensibility and that in 
the higher classes there are individuals of inferior sensibility (exactly as there are 
virtuous types among the unfortunate, and criminal types among the rich, in 
spite of the medium). Hence, "the scientific certainty of these minorities gives 
a less fatalistic significance to the problem of anthropological inequalities, since 
civilization does not tend to determine inequalities." When the social medium 
better assures the development of every human personality this select minority 
among the unfortunate who are now atrophied by poverty, will become more and 
more numerous; while even in the higher classes a less feverish (decreasing the 
pursuit of wealth) and a less parasitical existence will reduce the frequency of 
involutive degeneracy. 

2 Manouvrier, in the A. C. P. (Lyons, 1895), pp. 19, 155; "La genese normal du 
crime" (September, 1893), p. 144. 



100 DATA OF CRIMINAL ANTHROPOLOGY [§ 64? 

nate, depending on whether the individual is more or less pre- 
pared by his physio-psychic constitution for a given profession 
or whether he has been destined for it rather by family and 
social reasons. But there further exists, also, a purely biologi- 
cal or anthropological type of delinquent, precisely in the cases 
where the criminal tendencies are congenital and are shown from 
the earliest years, together with radical anatomical, physiognomic, 
and even psychic characteristics (impulsiveness, moral insensi- 
bility, extraordinary improvidence) which can not be explained 
as solely produced in the individual by habits of life or by social 
conditions. 

§ 63. Criminal Etiology. 

Such is the conception of the criminal temperament, which I 
disclosed elsewhere, 1 indicating the means of establishing a criminal 
etiology. This will be the practical crowning of this scientific 
work which in a few years has so brilliantly expanded on its 
double base of criminal anthropology and criminal sociology and 
which, after garnering such a quantity of analytical data that it 
is at times encumbered by it, must henceforward use these data and 
their partial investigations for a bio-sociological synthesis: and 
this will be the theory of the difficult but fruitful art of social thera- 
peutics. 2 

§ 64. Hypotheses as to Nature and Origin of Crime. 

Aside from the negative opinion of classical criminal science, 
according to which crime has no specifically biological nor social 
character, being only the fiat of the individual free will, criminal 
anthropologists have given many explanations and hypotheses 
on the nature and origin of delinquency. They can not be dis- 
regarded, although these hypotheses seem to me often hasty and 
premature and although they add nothing of merit in scientific 
knowledge or practical applicability to this positive determination 
of the organic and psychic characteristics in criminals, which is 

1 Ferri, S. P. (August, 1896). 

2 As indications for this synthesis, see the monographs of Rossi and Ottolenghi 
on two groups each of a hundred criminals (Turin, 1898); Del Greco, "II tempe- 
ramento epilettico," in the "Manicomio" (1893); Hamon, "La psychologie de 
l'anarchiste socialiste" (Paris, 1895); MoxDonald, "The Criminal-type"; and 
with less defimteness, Del Greco, " Temperamento e carattere nelle indagini psi- 
chiatncheedi anthropologia criminale," in the "Manicomio" (1898) p 161 and 
"Sulla psicologia della individualita," in the "Atti di Societa Roma'na d'anthro- 
pologia" (1898), fasc. 3. 



§64] FUNDAMENTAL OBJECTIONS TO DATA 101 

really the most important and most fruitful endeavor of criminal 
anthropology. Let us begin by studying in the most positive and 
exact way the different classes of delinquents. We shall then 
force ourselves to explain their origin and nature, — a synthetic 
research which should always be preceded by a persistent analysis 
as complete as possible. In this we shall place ourselves primarily 
at the view-point of criminal sociology, for while an ultimate ex- 
planation of the nature of delinquency may have interest, up to 
a certain point in the technical order of research in criminal 
anthropology, yet it has no immediate and necessary relation to 
criminal sociology. 1 

The things that are important for the sociological criminalist 
to know in order to draw his juridical and social inductions, are 
the factors of criminality which are susceptible of positive observa- 
tion in the biological, as well as in the physical and social order. 
It is really from the more or less abnormal tendencies and disposi- 
tions, hence more or less corrigible, in the different categories of 
delinquents, that he draws his conclusions as to the proper treat- 
ment to be applied to them, to maintain an equilibrium between 
the necessities of social defense in the offended and the rights of 
human personality in the offender. Whatever may be the origin 
and biological nature of delinquency, the sociological conclusions 
will not be influenced thereby, since the degree of abnormality 
and of corrigibility in each category of delinquents can be com- 
pletely determined by other elements, outside of the general 
hypotheses. This will become evident in the course of this work. 
If, however, it be desired to give some critical notice to these 
hypotheses, they can be reduced to the following : 

The comparative examination of these different hypotheses is 
very suggestive, and very useful in judging the scope and value of 
each of them and in reaching that synthetic conclusion which, to 
my mind, is the expression of the positive truth. 

1 This is also the opinion of Gambini, "Sulla genesi della delinquenza," S. P. 
(March, 1899). 



102 



DATA OF CRIMINAL ANTHROPOLOGY 



[§65 



Normality 



Crime is a 'phenomenon of: 

biological (Albrecht). 
social (Durkheim) . 

atavism J organic and psychic (Lombroso, Kurella). 
} psychic (Colajanni). 

neurosis (Dally, Minzloff, Maudsley, 

Virgilio, Jelgersma, Bleuler). 
neurasthenia (Benedikt, Liszt, 

Vargha) . 
epilepsy (Lombroso, Lewis, Ronco- 
roni) . 



Biological 
Abnormality 
by . . . 



pathology of 



Social . . . 
Abnormality 
by . . . 



f (Morel, Sergi, Fere, Zuccarelh, Ma- 
deqeneracy i „ T ., 

[ gnan, Corre, Laurent). 

defect of nutrition of the central nervous system 

(Marro). 

defect of development of the inhibitive centers (Bonfigli). 

moral anomaly (Despine, Garofalo). 

economic influences (Turati, Battaglia, Loria). 

juridical inadaptation (Vaccaro). 

complex social influences (Lacassagne, Colajanni, 

Prins, Tarde, Topinard, Manouvrier, Raux, Baer, 

Kin, Gumplovicz). 



Biologico-social Abnormality (Ferri). 



§ 65. Biological Norm or Basis of Origin and Nature of Delinquency. 

According to the conclusion supported by Albrecht at the First 
International Anthropological Congress (Rome, 1886), delinquents, 
in reproducing the tendencies, habits, and often the organic char- 
acteristics of the animal world, would represent the normal life 
of nature which is everywhere murder and robbery, while the con- 
duct of an honest man would be the exception and hence the 
anomaly in the natural order. I had no difficulty in replying to 
the illustrious anatomist with the unanimous assent of the members 
present, that his paradoxical conception might still be admitted 
in the sphere of comparative anatomy and of universal life but that 
it had no foundation in human life, which alone concerned the 
criminal anthropologist and sociologist. And further, since it is 
evident that delinquents, under whatever form they are met with 
in present humanity, are in the minority in comparison with the 



§66] FUNDAMENTAL OBJECTIONS TO DATA 103 

total of honest folk, they really represent an exception in the hu- 
man world, and hence constitute a biological as well as social 
abnormality. 1 I further said that, even from the point of view 
of comparative anatomy, it is inaccurate to assert that murder 
and robbery are the normal conduct of animals, 2 since the ani- 
mal acts which correspond to murder among men are not the 
murder of an animal by any other animal whatsoever but only 
when the slayer and the slain belong to the same species. Hence, 
as there is no crime when a man kills a mammal for food, it cannot 
be said that a carnivorous animal commits an anti-natural act 
when it kills an herbivorous animal. In this more exact sense, 
one cannot assert that universal life consists as a general 
rule, that is, normally, in murder, ravages, and thefts, under- 
stood in the anti-natural sense, in the same way that we 
understand crime in humanity in an anti-social sense. This 
consideration also destroys the similar assertion of Bonfigli, 3 
to the effect that crime only exists because of and in the meas- 
ure of the prohibition of the law and that consequently "there 
are no acts criminal in themselves, i. e., naturally such, since 
they must be considered as acts destined to satisfy physical 
needs, — rape, for instance, responding to the need of reproduc- 
tion; theft, to the necessity of nourishment; murder, to the 
elimination of competitors." The procuring of nourishment, re- 
production, and the destruction of a competitor are so many 
natural acts when they do not offend the individuals of the 
same species, with the same physiological needs and the same 
conditions of existence; but they become anti-natural (criminal) 
in man when in the satisfaction of our own physiological needs, we 
obstruct and destroy for our fellow-men, the conditions which are 
also indispensable for them in the satisfaction of their needs. 

§ 66. Sociological Norm as Basis of Origin and Nature of Delinquency. 
The idea that commission of crime is a normal act has been re- 
cently maintained from a purely sociological standpoint, by 
Durkheim, 4 who distinguishes normal from abnormal by the 

1 See "Actes du premier congres international de l'anthropologie criminelle 
(Rome, 1886), pp. 110 et seq. 

2 See Ferri, " L'Omicidio," Introd. 

» Bonfigli, "La storia naturale del delitto" (Milan, 1893), pp. 18, 19. 

• Durkheim, " Division du travail social," pp. 33, et seq.; "Les regies de la 
methode sociologique," pp. 81 et seq.; R. P. (June, 1894); "Le suicide (Pans, 
1898), p. 413. 



104 DATA OF CRIMINAL ANTHROPOLOGY [§ 66 

same mistaken criteria that I pointed out in my reply to Albrecht, 
when I called that social fact normal which occurs most often in 
time and space. Now, since crime shows itself in every human 
society, Durkheim concludes that crime is a phenomenon of normal 
sociology; or rather that it is a "factor of the public health, an 
integral part of every healthy society." In the first place, as 
Gualterotti 1 had already remarked, Durkheim falls into a con- 
tradiction when he admits that crime being a phenomenon of 
normal sociology the delinquent may be an abnormal individual, 
as if the specific product of an abnormal personality could be nor- 
mal. It is obvious, moreover, that in pronouncing the criminal 
phenomenon normal, Durkheim has gone astray on the normality 
and constancy of a social fact, for a social, or even a biological, 
fact may be constant and yet abnormal if it occurs in the lesser 
■number of cases. Otherwise one should also say that disease is a 
phenomenon of normal biology, because in all times, in all places, 
in all organisms, disease is observed. The positive criterion is on 
the contrary, as I told Albrecht, found in the majority or minority 
of the cases which show one phenomenon or another for each social 
group. That is why parricide, a horrible crime in Europe and 
America, is a permissible act and even a duty among the Battas 
of Sumatra. As to Durkheim's second assertion, namely that 
crime is a factor of the public health (although Tarde, 2 forgetting 
the distinction between a normal and a constant fact which we 
have just given, was very much scandalized by this heresy), we 
believe that it is partly true to say, as does Lombroso, that crime 
may have some useful effect in society, as pain and even disease 
may have in the organism of the individual. 3 Genius itself is a 
degenerescent abnormality; 4 but it is almost always useful to 
society, because it is a higher form of degeneracy (evolutive); 
whereas crime and insanity, which are a lower form of degeneracy 

1 Gualterotti, "Patologia e delitto" S. P. (1894), p. 833. 

2 Tarde, "Criminalite et sante sociale," R. P. (February, 1895), and in "Etudes 
de psychologie sociale" (Paris, 1898), p. 136. Durkheim replied (R. P., May, 
1895), to his sentimental and unscientific tirades, that the proofs of science must 
be accepted, no matter what are the impressions of sentiment. Otherwise we 
are not men of science, "but more or less consistent mystics; and mysticism 
is the reign of the imagination in the intellectual domain." 

3 Lombroso, "Les bienfaits du crime," in the "Nouvelle Revue" (July, 1895), 
and Riv. di sociologia (November, 1895). He has added the idea of the Symbio- 
sis, i.e., utilization of crime by society, as the final conclusion of the third volume 
of "l'Uomo delinquente." 

4 See Lombroso, "L'Uomo di genio," 6th ed. (Turin, 1894); "Genie e dege- 
nerazione" (Palermo, 1898). 



§67] FUNDAMENTAL OBJECTIONS TO DATA 105 

(involutive), are almost always harmful and only useful by way of 
exception. 1 Yet neither in Durkheim's observations — which 
Sorel calls courageous 2 and to which Tarde could oppose only 
commonplace artifices of syllogistic controversy — nor in the 
observations of Lombroso, is the truth complete, because they 
did not make the distinction (that I have recently made) between 
atavic or anti-human criminality and evolutive or politico-social 
criminality. 3 It is quite certain that all the social damages im- 
puted to crime by common sense and by Tarde in his controversy 
with Durkheim are very real if one speaks of atavic criminality, 
while they are less real if one speaks of evolutive criminality, 
which may even contribute by reaction to social progress because, 
as Durkheim says, "Sometimes the criminal (I add evolutive) has 
been the forerunner of future morality." 4 Thus, for example, the 
whole history of the labor movement in England since 1800 shows 
how the popular agitations which lasted until about 1870, contrib- 
uted to bring about the present political liberties and mutual 
respect in the economic struggle between capitalists and work- 
men; and yet these agitations almost always took the forms of 
criminality (evolutive) in strikes accompanied by violence, riots, 
and outrages. 6 In any event, whatever may be the result of the 
social counter-effects, crime is always a form of abnormal activity 
and hence we cannot admit with Durkheim that crime belongs to 
normal sociology and not to social pathology. 

§ 67. Biological Abnormality as Organic or Psychic Atavism as Basis of 
Origin and Nature of Delinquency. 

Among the biological explanations of criminality of which we 
are now going to speak, the most characteristic, and hence the 
most actively combated, is that of organic and psychic atavism 
given by Lombroso in his first two editions. This character of 
atavism is absolutely undeniable in many anomalies of criminals: 
but the explanation by atavism (indeed like all those which are 

1 Ferri, "La rehabilitation des anormaux," in "Revue des Revues" (15 Feb- 
ruary, 1899). 

2 Sorel, "Theories penales de Durkheim et de Tarde" (15 February, 1899). 

3 Ferri, "Delinquenti e onesti," S. P. (June, 1896); Sighele, "Mondo eriminale 
italiano" (Milan, 1895), had, however, distinguished atavic crime from evolutive 
but from the morphological point of view, by the substitution of fraud for violence 
rather than by its content and its determinant motives. 

* Durkheim, R. P. (May, 1895), p. 521. 

» Sydney and Beatrice Webb, "History of Trade Unionism," Cap. IL III. 



106 DATA OF CRIMINAL ANTHROPOLOGY [§ 68 

purely biological or purely social), although it has been taken up 
and maintained by Kurella, 1 and although it is in relation to the 
born-criminal the fundamental explanation, has the defect of not 
embracing all of the anthropological categories of delinquents, nor 
even all the habitual cases in the same category. It must be 
obvious to one who has studied delinquents, that those who are 
only delinquents occasionally show much fewer anomalies in gen- 
eral and fewer atavic anomalies in particular; and that even 
among born-criminals there are some whose type is clearly atavic 
and others whose type more nearly borders on pathology or 
organic and psychic degeneracy. For this reason, Lombroso 
himself, as early as the third edition of his "Uomo delinquente," 
said: "Arrested development thus shows us disease concurrent 
with that atavism to which we have acknowledged such predom- 
inance. Atavism remains in spite of disease or, more accurately, 
together with disease, one of the most constant characteristics 
of the criminal-born " : 2 a fact which, parenthetically, has not 
prevented many critics from repeating to satiety, that Lom- 
broso thinks atavism the sole explanation of congenital criminality, 
in the same way as they have continued to repeat that he studied 
only the cranium of criminals. 

§ 68. Biological Abnormality of Epilepsy as Basis of Origin and Nature 
of Delinquency. 

Thus, Lombroso, modifying the synthesis in the measure that 
he diversified and completed the analysis of facts, has, in his 
last edition, more closely associated atavism and pathology in 
the explanation of criminality basing the latter on epilepsy and 
moral insanity. After declaring for the almost exclusive pre- 
dominance of atavism he later coupled moral insanity with con- 
genital criminality. And this conception is now accepted by the 
greater number of Italian alienists as shown in Tamburini's report 
of the phreniatric Congress of Sienna (1886) . And lately Lombroso 
has added that at the bottom of moral insanity and delinquency 
is epilepsy or the epileptoid nature of the various criminals; and 
that in many cases arrested development and degeneracy are also 
present. Naturally this explanation has been met with a horde 
of objections and of these the following are the two principal ones: 

1 Kurella, " Naturgeschichte des Verbrechers," p. 255. See also Sorel, "La 
position du probleme de M. Lombroso," R. S. (18 February, 1893), p. 207. 

2 (1884), p. 589. 



§69] FUNDAMENTAL OBJECTIONS TO DATA 107 

I. Not all delinquents are epileptics (and Lombroso never 
said they were) ; nor have all of them the epileptoid nature. 

II. Epilepsy or general pathology excludes atavism, because 
"it can not be said that epilepsy is a form of return to our savage 
or prehistoric ancestors." 

In my opinion these objections lack solidity, because, following 
such a conception, delinquency would not be (except in the cases 
where criminals were also epileptics) a form, but rather a trans- 
formation of the epileptic or epileptoid condition, and again; 
because atavic and animal traits and habits are observed in epi- 
leptics who are not delinquents. There is no real conflict between 
atavism and pathology as is shown by many forms of insanity 
and idiocy. As far as one can judge, the explanation of delinquency 
by epilepsy, to which Lombroso has given a rich series of symp- 
tomatic proofs, is fundamentally true, as is confirmed by the 
researches of Tonnini, Ottolenghi, Roncoroni, and De Arcan- 
gelis. 1 I have found that it is almost always the sole positive 
explanation in all of the strange, unforeseen, and motiveless crimes 
against the person, against decency, or even against property. 
In spite of this, the explanation by epilepsy appears incomplete 
when one reflects that there are many simple epileptics who do 
not commit crime although subject to social and physical conditions 
in which the evil plant of crime thrives vigorously. 

§ 69. Biological Abnormality of Organic or Psychic Atavism as Basis of 
Origin and Nature of Delinquency. 

I have already said that Colajanni's conclusion on crime, which 
he considers "as a phenomenon of psychic atavism," is in flagrant 
contradiction with the rest of his book, wherein he criticises as 
erroneous and valueless (without accepting a single one) all of the 
partial conclusions of criminal anthropology, whether in the organic 
or in the psychological field, only to accept in the end this hypoth- 
esis of atavism which is the oldest and most contested synthesis 
of these partial conclusions of fact. But even aside from this, a 
purely psychic atavism is inconceivable unless one also admits 
the organic atavism which Colajanni wishes absolutely to exclude, 

1 Tonnini, "Le epileasie rapporto alia delinquenza" (Turin, 1891); Ottolenghi, 
"H campo visivo negli epilettici e delinquent!" (Turin, 1891); "Epilessie trau- 
matiche," in "Grionale di Accademia medicale" (Turin, 1890-91); "Le epilessie 
psichich'e," in "Revista sperimentale frentricia," 1893; 0. Roncoroni, "Trattato 
clinico de 1' epilessia" (Milan, 1893); De Arcangelis, "Le stimmate epilettoidi nei 
criminali alienati," R. S. F. (1897), pp. 324 and 567. 



108 DATA OF CRIMINAL ANTHROPOLOGY [§ 70 

or which without any scientific reason he would limit exclusively 
to the central nerve cells, as if these latter lived and were trans- 
mitted by heredity in space and not indissolubly bound to all the 
other organic elements of life. 1 

§ 70. Biological Abnormality of Neurosis or Neurasthenia as Basis of 
Origin and Nature of Delinquency. 

In opposition to the explanation by atavism, we have the ex- 
planation of delinquency as a phenomenon of pathology, which has 
been developed in different ways by different authors. While 
Lombroso (and with him Bevan Lewis, 2 besides several Italian 
criminal anthropologists) traces the pathological condition of the 
delinquent to an epileptoid origin, the English psychopathists 
(Thomson, Maudsley) and Virgilio in Italy consider crime as 
only a branch of the trunk to which insanity also belongs. Ac- 
cording to Maudsley there is an intermediate zone between the 
branch of crime and that of insanity. Benedikt, on his part 
(followed by the jurists Liszt and Vargha), 3 conceives the patho- 
logical condition, in which crime originates, as a physical, moral, 
and esthetic neurasthenia, either congenital or acquired, that 
produces the professional criminal: then the delinquent by dis- 
ease or intoxication and the degenerate criminal are added. Of 
these last hypotheses, that of Benedikt seems very vague since 
by the term "neurasthenia" we neither add to nor particularize 
our clinical or biological knowledge of the nature of delinquency; 
not to mention that the symptoms given by Beart for neurasthenia 
or nervosism (which to the American neurologist have very little 
difference although Colajanni thinks the contrary) do not alto- 

1 I believe, however, that Colajanni only raised the hypothesis of psychic 
atavism because it had been mentioned, shortly before the publication of his work 
(1889) by Jauvelle on Atavism psychic, B. S. A. (Paris, 1887), and by Mante- 
gazza ("Gli atavismi psichici"), in the A. P. A., 1888. As Groppali brought to my 
attention at the Second International Congress of Sociology, in the "Pensiero 
italiana" (December, 1896, p. 417), "the central and inspiring idea of Colajanni's 
work is the predominance of the social factors in crime" which he has borrowed 
from the little work of Turati, "delitto e questione sociale" (Milan, 1883), and with 
which I shall deal presently. 

2 Bevan Lewis, "The Genesis of Crime," in the "Fortnightly Review" (Sep- 
tember, 1893); also Cabade, "De la responsibility criminelle" (Paris, 1893), p. 
298, admits "a very great analogy" between crime and epilepsy. See also Peixoto, 
"Epilepsia e crime" (Bahia, 1887). 

3 Liszt, "Apergu des applications d' anthropologic criminelle," in the "Actes 
du congres de Bruxelles" (1883), p. 95; Vargha, "Die Abschaffung der Strafrecht- 
schaft" (Gratz, 1896), I, Cap. I. 



§71] FUNDAMENTAL OBJECTIONS TO DATA 109 

gether agree with the symptoms of born-criminals (the profession- 
als of Benedikt), among whom something quite different from 
nervous exhaustion is observed. Benedikt's hypothesis is wholly 
applicable only to the single category of physical neurasthenic 
vagabonds among whom there has long been observed an organic 
debility that unfits them for all regular and prolonged work. As 
to the common origin of crime and insanity, that is in many cases 
more true. There are, however, many delinquents by occasion 
whom it does not explain; and it does not tell us why there are 
a multitude of insane who are not at all delinquent. There is 
certainly a frequent and strong analogy between crime and in- 
sanity, just as there is between all of the more serious forms of 
human degeneracy; but this analogy falls short of a complete ex- 
planation. Furthermore, there is really a profound difference, 
both of anthropological type and psychic characteristics, between 
ordinary madmen and the criminal insane. 1 

§ 71. Biological Abnormality or Degeneracy as Basis of Origin and Nature 

of Delinquency. 

In the last few years there has been a great revival in biological 
and psychological circles of the conception of degeneracy, which 
after its promulgation by Morel in 1857 was long quite neglected. 
While there is some truth in this explanation of the origin of crime 
there is also much that is vague. No precise and positive biological 
idea of degeneracy is given and it is considered, in harmony with 
Morel's theory, as "a deviation of the primitive or normal type," 
which goes on by transformation and aggravation in successive 
generations until it is extinguished by sterility or suicide. 2 This 
idea of degeneracy has now become so broad that "it comprehends 
everything that is referred to it " and by explaining too much ends 
in explaining too little. It is, as Sorel observes, "a vague and 
convenient formula which permits of agreement provided one is 
not specific on anything." 3 

1 I have often observed this difference and analogy in comparing the inmates 
of asylums for the insane and those for the criminal insane, such as that at Mon- 
telupo in Tuscany. 

2 "Degenerescence," in the "Dictionaire encyclopedique des sciences medi- 
cales" by Dechambre, and in the "Dictionaire des sciences anthropologiques." 
See also Dallemagne, "Degeneres et desequilibres (Brussels, 1894); Giuffrida 
Ruggieri, "Sulla dignita, morfologica dei segni detti degenerativi" (Rome, 1897); 
A. S. R. A., fasc. 2-3; Lombroso, "Caratteri speciale dei degenerescenci," in the 
A. P. (1898), XIX, 255, where he distinguishes three great species of degeneracy 
— cretinous, epileptic, and paranoic. 

> Sorel, R. S. (1893), I, 208. 



110 DATA OF CRIMINAL ANTHROPOLOGY [§ 74 



§ 72. Biological Abnormality of Defective Nutrition as Basis of Origin and 
Nature of Delinquency. 

The same must be said of Marro's hypothesis of "defective 
nutrition of the central nervous system " : while it presents a partial 
truth which explains the irritable weakness and impulsiveness of 
delinquents, yet it remains indeterminate, since this defect of nu- 
trition may give rise not only to crime but to every other form of 
biological inferiority, from simple organic and physical debility 
without any other results, to suicide and insanity. 

§ 73. Biological Abnormality of Defective Development of Inhibitive Centers 
as Basis of Origin and Nature of Delinquency. 

Less indeterminate is the idea of Bonfigli who discovers the 
origin of crime, not in the natural sense of the word but in the 
sense of action contrary to the laws in force, in the nervous system 
"where the forces of the inhibitive centers are not well-propor- 
tioned to the functional activity of the other parts of the same sys- 
tem . " Aside from the question whether there are really and strictly 
speaking, centers of cerebral inhibition, 1 it is a fact, as I have 
shown in "L'Omicidio" 2 that impulsiveness due to defect of 
cerebral inhibition is the fundamental psychic characteristic of 
the criminal. But it is also true that this purely descriptive 
explanation does not help us very far along the road to the genetic 
explanation of criminality. 

§ 74. Biological Abnormality of Moral Anomaly as Basis of Origin and 
Nature of Delinquency. 

Finally, Despine's idea, taken up by Garofalo, to the effect that 
congenital criminality is not within the real field of pathology 
properly so called, but is limited to an anomaly of moral sense, 
does not seem to me to correspond to fact; because, even in 
the single category of born-criminals (always disregarding criminals 
who are evidently insane), it is impossible to exclude the more or 
less striking presence of pathological characteristics. It is also 
impossible to forget hereditary transmission which is always veri- 
fied in criminality, insanity, suicide, and moral anomalies, a fact 
which demonstrates their common nature. The clean-cut sepa- 

1 Oddi, "L'inibizione dal punto di vista fisio-patologico, psicologico e sociale" 
(Turin, 1898). 

2 V. P. II, Cap. X. 



§ 75] FUNDAMENTAL OBJECTIONS TO DATA 111 

ration that Garofalo attempts to make of congenital criminality 
and insamty is not scientifically exact, — for instance, when he 
reiterates, with Esquirol and others, that in the madman crime is 
an object in itself, while in the criminal it is the means of obtaining 
some selfish end. 1 On the contrary, there are insane persons 
who commit crime either to attain a legitimate though imaginary 
object, for example self-defense under the delusion of persecution, 
or from anti-social motives of revenge, lust, or other motives just 
like ordinary criminals. The insane to whom crime is its own ob- 
ject are but a slight minority, for example, the homicidal maniac 
and kleptomaniac. Nor would it be enough, in abandoning this 
criterion (as Garofalo did) 2 to hold as he does to the other 
proposition, namely, that the psychic process which determines 
crime in the madman "is not in agreement with the external 
cause," whereas in the born-criminal, "it is in agreement with the 
impressions of the exterior world." There are, indeed, madmen 
who act as I have already said, through vengeance, lust, or cu- 
pidity, adapting the means accurately to the end and taking 
account of offenses received and exterior temptations, or, vice 
versa, there are sane criminals whose acts are not in agreement 
with impressions from the exterior world, such as the assassin- 
thief who first kills and then despoils his victim without any con- 
sideration of personal defense or of impunity and through purely 
instinctive ferocity. There is, again, the criminal who kills the 
"first passer-by" to win the respect of his companions; and the 
criminal who engrafting an altruistic sentiment on an atrophied 
moral sense, despoils or kills an innocent victim, in aid of a third 
person, and so on. 3 

§ 75. Biological Abnormalities as Basis of Origin and Nature of Delin- 
quency, — Summary. 

To summarize: Each of these biological explanations of crim- 
inality is true in part. I say in part because each of them is veri- 
fied more or less completely by facts, in such or such a variety 
of each category. But none of these hypotheses is sufficient nor 
complete; first, because they are not sufficient' to explain the 
natural genesis of crime in all the categories of delinquents; in 
the second place, even when they agree with the characteristics 

1 Garofalo, " Criminalogia, " 1st ed., p. 99. 

2 Garofalo, "Criminalogia," 2d ed. p. 106. 

3 Ferri. "L'omicidio," pp. 589 el seq. 



112 DATA OF CRIMINAL ANTHROPOLOGY [§ 75 

of a given criminal type, they still fall short of giving the precise 
and fundamental reason why in some individuals a given condition 
of biological abnormality presages crime while in others only 
insanity, suicide, or simply an organic and psychic inferiority. 
Why is it, that of a hundred insane subjects, either neuropathic, 
neurasthenic, epileptic, degenerate, defective in the nutrition of 
the nervous system or of the inhibital centers, or who show 
general anomalies, there are only twenty, thirty, or fifty who com- 
mit crimes while the others do not? In some of the cases a satis- 
factory reply may be given that the others may be influenced by 
a favorable physical and social environment, which instead of 
turning the balance to the side of their biological anomaly, restricts 
it and prevents them from passing to excesses rising to the grade 
of crime. Even this does not fully explain; for there are de- 
generates and madmen, living in about the same family and social 
environment, some of whom become delinquents while others 
do not, and some become sanguinary and violent, while others, 
with an organic repugnance to homicide, commit thefts or frauds, 
and vice versa. The varying differences of exterior circumstances, 
which are inevitable for each moment of life and for each indi- 
vidual, do not explain this enormous difference in the final result. 
Of two idiots similarly treated in their family and subject to the 
same influences, one responds to pleasantries by murder and the 
other not. Of two degenerates or two insane persons who are 
refused in marriage, one kills the young woman and the other kills 
himself at her feet. Of two or more degenerates or neurasthenics, 
as the result of poverty, one becomes merely an inoffensive vaga- 
bond who does nothing worse than beg, while another devotes him- 
self to theft and even to violent robbery accompanied by murder. 
There is no explanation for the differences, and a thousand other 
illustrations could be cited. It is useless to say, as does Ma- 
nouvrier, 1 that two individuals, even living in the same family, 
never find themselves in exactly identical conditions of environ- 
ment, because, although true in an abstract and metaphysical 
way, yet in reality the little differences of circumstances and en- 
vironment, as between brothers living in the same family, are not 
a cause proportionate to the enormous difference of results, where 
one, for instance, remains honest and the other becomes a mur- 
derer, or where one of them to escape poverty prefers suicide 
to murder. The fact is that the biological factor of criminality, 
1 Manouvrier, "Les aptitudes et les actes" (October, 1893), p. 327. 



§75] FUNDAMENTAL OBJECTIONS TO DATA 113 

the criminal temperament, consists in something specific that has 
not yet been determined, but without which there is no explana- 
tion of such diverse results, out of all proportion to the exterior 
circumstances in which are often found individuals of every social 
class tainted with some stigmata of organic or physical anomaly. 
I become more fixed in this conclusion when I think of the criminal 
type which serves to distinguish delinquents not only from normal 
individuals but also from the insane, the degenerates, epileptics, 
and non-delinquent neurasthenics. 

A study of the inmates of an ordinary insane asylum, such as I 
made at Pesaro and at Bologna, is enough to at once establish this 
fact. A great majority of these unfortunates do not show the crim- 
inal type (especially in the physiognomy) , while on the contrary, in 
a small number of insane who have committed crime, the criminal 
type is frequent. The well-defined type of the murderer, such as 

1 distinguished it in one young soldier out of seven hundred, I have 
met with in only three or four insane persons in the asylum of Pe- 
saro; and in the same way that the soldier told me he had been con- 
victed of homicide in his infancy, these insane persons proved to 
have been tried for murder. I can distinguish the homicide type 
among a hundred persons affected with general degeneracy or 
epilepsy or neurasthenia. And inversely, in the asylum for the 
criminal insane at Montelupo, I found a great number of criminal 
types always cleanly divisible into murderers and non-violent 
thieves, for the simple reason that there are there confined, not 
ordinary insane and degenerates, but delinquent madmen and de- 
generates. This does not contradict the fact that there are on 
the other hand some delinquent degenerates who do not show the 
criminal type and who have observable symptoms of only serious 
degeneracy. This is because a very serious degeneracy may efface 
the specific marks of criminality in its external manifestations. 

This amounts to saying that criminality, especially when con- 
genital (but in part when occasional), is a really specific form of 
biological anomaly, which in the field of race and temperament, is 
distinguishable from every other form of anomaly, pathology, or de- 
generacy, and leads precisely to active crime, when favored by given 
physical and social conditions that offer to the predisposition of the 
individual the occasion and the means. 1 Hence, not as explaining 

1 In agreement with these ideas which he develops, see Del Greco, "Malattia 
e teoric biologiche della genesi del delitto," in the "Manicomio" (1896), Nos. 

2 and 3, and "Temperamenti e carattere nella psichologia antropologia criminah" 
(1898), p. 42. 



114 DATA OF CRIMINAL ANTHROPOLOGY [§ 75 

the essence or nature of criminality but simply because it is necessary 
to give expression to my thought, I believe that the most accurate 
and most positive conception from the biological standpoint, is that 
of a "criminal neurosis," distinct in itself from any pathological, 
atavic, degenerative, or other form whatsoever: a criminal neu- 
rosis that one might again term, with Virgilio, a form of "psychic 
teratology," with which are certainly associated in a given delin- 
quent in a more or less predominant way, some characteristics 
of atavism, retarded development, neurasthenia, or degeneracy, 
but which of itself constitutes the specific factor whereby a particu- 
lar individual, with certain biological characteristics and exposed 
to certain influences of physical and social environment commits a 
given crime. If I wished to attempt one further step in advance 
I might repeat what I have said elsewhere; namely, that the con- 
dition of physio-psychic anomaly (through atavism, pathology, 
and degeneracy), while affecting the whole nervous system and 
organism of the individual, may preferentially attack the intelli- 
gence, the affections, or the will,- and that in the first case we 
would have insanity, in the second, crime, and in the third, sui- 
cide, it being conceded that insanity is the shipwreck of the 
intelligence, that crime is the lack or loss of the moral or social 
sense, and that suicide is the bankruptcy of the will in the struggle 
for existence. 1 Be that as it may, the substance of my thought 
returns to the point where it attributes to criminality of whatever 
form and category, a complex origin and nature, both biological 
(in the specific sense indicated above), as well as physical and 
social. As for the biological factor considered separately, crime is 
explicable only by the special and characteristic condition, called 
for want of a more exact term "criminal neurosis," so also no crime, 
no matter how insignificant, can be positively explained, unless it 
be considered as the resultant not only of the biological factor but 
also of the physical and social factors. Certainly the predom- 
inance of a given order of factors determines the distinctions in the 
mass of delinquents, in accordance with a classification which 
we shall see later. But it is also certain that every delinquent 
and every crime of any category, is the simultaneous product 
of the concurrence of these three natural orders. 2 This synthetic 

1 See also Angiolella, "Manuale di anthropologia criminate" (Milan, 1898), 
p. 309. 

2 It is because the genesis of delinquency is biologico-physico-social that it is 
called in my theory, when considered as an anomaly, a biologico-social anomaly, 
since it could not be called an anomaly of the physical (telluric) medium, although 
that necessarily concurs in its determination. 



§76] FUNDAMENTAL OBJECTIONS TO DATA 115 

explanation of the origin and nature of crime has never been 
directly attacked either by the metaphysical critics or by the 
positivists of the new school. They thus implicitly admit that 
it is true and complete: after some criticism of detail on particular 
points of the natural genesis of crime, they even gave the impres- 
sion that they were entitled to the credit for this proposition of 
the concurrence of the different criminal factors which we have 
asserted from the beginning. 1 

§ 76. Basis of Origin and Nature of Crime Complex. 

Let us repeat once more that in our opinion crime is not an 
exclusively biological phenomenon nor the exclusive product of 
the physical and social environment, but that every crime, trivial 
or grave, is always the resultant in every anthropological category 
of delinquents and in every individual of the category, both of a 
special, permanent or transitory, congenital or acquired abnor- 
mality of the organic or psychic constitution, and of external 
physical and social circumstances which concur in a given time and 
place in determining the action of a given man. Of this I have 
furnished a demonstration and an example in my own positivistic 
researches on the murderer. Let us finally repeat, nevertheless, 
that in every delinquent whomsoever and in every crime whatever 
committed by him, the determinating predominance varies, 
whether it be the predominance of one of the three orders of 
criminal causation, or the predominance, in either of these orders, 
of one of the particular causes. Murders committed by the 
the insane are largely the effect of the psycho-pathological con- 
dition of the individual; but this would not be sufficient to cause 
murder, if it were not, in the first place, of a nature to give the im- 
pulsion toward this crime (for otherwise the madman, instead of 
ki llin g another, would kill kimself or would fall into simple de- 
lirium 2 ) and unless, in the second place, the physical and social 
conditions concurred here also, although in a lesser degree. 

1 For instance, while Turati, Colajanni, Tarde, etc., accuse us of being too 
anthropological, Brusa, "Sul nuovo positivismo nella giustizia penale" (Turin, 
1887), LXII, charges us with giving too much relief "to natural and social soli- 
darities" while neglecting the individual factors. 

2 This is exactly what Del Greco proved (and I said it in my second edition, 
1892, p. 128) by clinical observation in "II delinquente paranoico omicida" (June, 
1894), when he showed that of the multitude of paranoics inmates of his asylum 
for the criminal insane all in a uniform medium and all with hallucinations of per- 
secution, the majority reacted by depression and plaintive whinings. Some asked 
aid and pity, and others went as far as insults (injures) and threats: while only a 



116 DATA OF CRIMINAL ANTHROPOLOGY [§ 76 

Ten degrees less of heat, or a few millimeters more of barometric 
pressure on the particular day might perhaps have prevented 
the murder. So also, if the victim had not met the madman or if 
the latter had been better guarded and cared for, the homicide 
would not have occurred. The same may be said of murder 
committed through congenital tendencies to savagery, without 
any clinical form of mental alienation. At the opposite extreme, 
homicide caused by a political ideal (and not by party revenge) 
is largely the effect of the political and social conditions of environ- 
ment. But its complete explanation is only to be had by consider- 
ing also the physical conditions, the action of which, in this case, 
will not be obvious and might easily escape notice, although 
none the less real. A hot wind, an excessive and stifling heat, 
may diminish the nervous energy of the individual and lead him 
to postpone his act until to-morrow and to-morrow it may be no 
longer possible. The victim may have gone away or have been 
warned. A mild temperature and stimulating air may, on the 
contrary, heighten the resolution and concur in the execution of 
a political murder. Nor may one at all disregard the biological 
factor in this case. It is true that one who commits homicide in 
obedience to a political ideal has nothing in common with the ordi- 
nary criminal, although there are also ordinary insane persons and 
criminals who, in given circumstances, sometimes perpetrate 
political attempts, as the effect of a kind of epidemic such as oc- 
curred in the religious attempts of the Middle Ages. But even 
when the political homicide is committed only through the im- 
pulsion of an honorable social ideal, the personal factor plays its 
part, as is sometimes seen in the case where the one selected to 
accomplish such an act is unable to overcome his repugnance to 
shedding blood and prefers suicide. 

The same may be said of chance murder ("homicide occa- 
sionel") which is the consequence of gambling or drink. The proof 
of it is that not all of those who become drunk or dispute in gaming 
end by giving knife wounds, even in approximately similar exterior 
circumstances, or in circumstances in which the differences are 
at most slight and not proportionate to the varying result between 

very small number reached the point of crime (blows, woundings, etc.), or at least 
would have reached it, if not prevented. Thus, as Angiolella says, "Sullo stato 
actuale dell' anthropologia criminale," in the "Rivista di frenetricia" (1895), p. 
180. "The stimulant is the same: the difference is in the individual character 
■which reacts in a, different way." See also my report to the Geneva Congress oa 
the"Temperamento criminale," S. P. (June, 1896). 



§76] FUNDAMENTAL OBJECTIONS TO DATA 117 

these two extremes : at one extreme animated words, at the other 
murder. For every attempt, one may, in relation to every crim- 
inal, repeat the same observation concerning the individual in- 
fluences of each of the particular factors, on each subject, at each 
moment of his life; and one may say generally that, according 
to the different categories of delicts and delinquents, against the 
person or against property, against morality or honor, the bio- 
logical, physical, or social factors predominate differently in the 
effective determination of the delict. 1 

What we have said of the natural genesis of crime may also be 
said of every other form of human activity, normal or abnormal. 
Thus, for instance, one cannot speak of the other great manifesta- 
tions of social pathology such as insanity, suicide, alcoholism, 
or vagabondage, nor of the great manifestations of biological 
pathology of which heredity and contagion are two fundamental 
conditions of development, without thinking that they are the re- 
sultants of the combined action of anthropological factors (heredi- 
tary predisposition or momentary disposition of the individual), of 
physical factors (conditions of the telluric medium), and of social 
factors (conditions of family life, sensitive, nervous, and intel- 
lectual). In this connection it is strange that one of the most 
incisive of contemporary sociologists, Durkheim, excludes from 
the causality of suicide, the anthropological factors (heredity and 
psycho-pathological conditions) and the physical factors (such as 
the changes of the seasons), notwithstanding that the constantly 
increasing number of suicides in the hot months depends, for 
instance, on the debilitation and irritability of the nervous system 
produced by excessive heat. One should not, however, disregard 
his explanation, although in itself insufficient, wherein he adverts 
to the greater length of the days and consequently the greater 
number of affairs and preoccupations in which the persons pre- 
disposed to suicide live. 2 

1 See my communication to the Criminal Anthropological Congress of Paris, 
"Sur la valeur relative des conditions individuelles, physiques et sociales qui deter- 
minent le crime" (May, 1889); Dallemagne, "Theories de la criminalite" (Paris 
1896), p. 193, acknowledges that my theory is "one of the most complete" and that 
complex formulae like mine "are the only ones that it is necessary to retain and 
submit to methodical observation and continued analysis." Every day there is 
an increase in the number of criminal anthropologists and sociologists who accept 
my synthetic theory (already developed in my first edition, 1881): it finds new 
applications and proofs in anthropology as well as in criminal statistics and in the 
juridico-social systems of defense against crime. 

2 Durkheim, "Le suicide" (Paris, F. Mean), p. 97. 



118 DATA OF CEIMINAL ANTHROPOLOGY [§ 77 

§ 77. Social Abnormality of Economics as Basis of Origin and Nature of 

Delinquency. 

Now these considerations on the inseparable concurrence of 
the anthropological, physical, and social factors in every form of 
human activity and on the variable importance of each of them 
in every particular case, not only assist us to develop and give 
precision to our idea on the origin and nature of criminality but 
they are useful as well in showing the insufficiency of the other 
group of hypotheses which are still to be examined. According 
to many of our critics, and especially those who have rarely or 
never studied criminals with a truly scientific method and by 
direct observation, criminality is a phenomenon of exclusively 
social origin, while showing one or another of the particular as- 
pects which this kind of causes may take. There are some who 
maintain that the whole social medium is determined by economic 
conditions, and that consequently crime, in whatever form it 
presents itself, is but the effect of economic disease. I have 
so fully discussed this opinion elsewhere that there is no need of 
repetition here. 1 The Marxian doctrine of historical material- 
ism, which I think it more accurate to call the doctrine of economic 
determinism, according to which the economic conditions of each 
social group in each phase of its evolution determine, "in the last 
analysis," as Engel says, that is, directly or indirectly, both the 
moral sentiments and the political and legal institutions of the 
same group, is profoundly true. It is the fundamental law of 
positivistic sociology. 2 Yet I think that this theory should 
be supplemented by admitting in the first place that the economic 
conditions of each people are in turn the natural resultant of its 
racial energies which unfold in a given telluric medium; and by 
admitting in the second place that the moral sentiments, ideas, 
and political and legal institutions also have their own relatively 
autonomous existence, i. e. within the limits of the variations of 
a given economic constitution on which they also have their more 
or less superficial reaction but which are nevertheless worthy of 
being noticed. 3 

1 Ferri, "Socialismo e criminality." 

2 Ferri, "Sociologieet socialisme," in the " Annales de l'lnstitute Internationale 
de sociologie" (Paris, 1894), I, p. 157. 

3 Ferri, "Socialismo e scienza positiva" (Rome, 1894), p. 158. As an example, 
proven by positivistic observation, of the influence of soil and race on the social 
constitution and on individual physio-psychic nodalities, see Desmoulins, "Les 
Frangais d'aujourd' hui. Les types sociaux du midi et du centre" (Paris, 1898). 



§79] FUNDAMENTAL OBJECTIONS TO DATA 119 

§ 78. Social Abnormality of Juridical Inadaptation as Basis of Origin and 
Nature of Delinquency. 

A view has recently been urged which is in part a repetition of 
the accurate and well-known idea that the insane, the defectives, 
and the criminals, are beings relatively or absolutely unfit for 
social life and which is in part an evident derivation from the 
Marxian doctrines on the struggle of the classes for economic, 
and, hence, for political, supremacy. This view is that the delin- 
quent is nothing other than an individual who has not known how 
or who has not been able to adapt himself to the penal laws which 
look to the defense of the interest of the dominant class at each his- 
torical moment. And this defect of adaptation ends in either 
direct revolt or in the degeneracy of individuals condemned to 
an inferior life. It will be more appropriate to speak of this 
opinion in treating of penal justice and social defense. It will 
here suffice to call attention to the inadmissable omission of the 
biological factor, since I can here again repeat : How does it happen 
that of a hundred individuals who are "non-adapted, or degenerate 
because of lack of adaptation to the juridical organization," only 
ten commit crimes while the others commit suicide or become 
insane? Further, of what use is this hypothesis, when there is a 
question of crimes which are not directed against the politico- 
social organization or which are committed to the prejudice, not 
of the dominant classes, but of the class of the delinquents? 
And finally, when the penal code punishes homicide and assault 
without distinction of persons, for instance, where the delinquent 
and his victim are both paupers, how can it be said that it pro- 
tects only or preferentially the interests of the dominant class? 

§ 79. Social Abnormality of Complex Social Influences as Basis of Origin 
and Nature of Delinquency. 

I consider the opinion inaccurate and prejudiced which holds 
that crime is the exclusive or even the principal effect of social 
environment. Tarde sums it up by saying : "A given social organ- 
ization, a given criminality." * This opinion, originated by the 

1 Tarde, " Criminalite comparee," p. 28. In connection with Tarde, the con- 
tradiction into which he has recently fallen is remarkable. In the matter of crimi- 
nality, he who preached the social environment as the sole factor of crime so 
much,' reaches the point of examining the social transformism of de Greef (Paris, 
1895)! where the latter rightly maintains the theory that social transformations 
are not the work of individuals (great men) but that they have their deep causes 



120 DATA OF CRIMINAL ANTHROPOLOGY [§ 80 

Italians, then taken up by the French and more recently also by 
the Germans, 1 without any new syllogistic argument and with 
a complete absence of observation of delinquents and the de- 
terminant causes of their anti-social existence, however, has 
appeared very seductive, not only because of its generality but also 
because it escapes, they claim, the fatalism of the anthropological 
social school. In effect, they say, if crime is but the exclusive 
effect of atavism and pathology, society can do little or nothing 
to reduce its intensity and extension. On the contrary, in affirm- 
ing that crime is essentially a social phenomenon, there is also 
affirmed the comforting possibility of reducing or even eliminating 
it by improving or changing social conditions. The opinion is 
accurate in itself, but there is no justification for opposing it to the 
positivist criminal school, which has never, even through its most 
specially anthropological representatives, asserted that crime is 
always and solely a biological phenomenon. 

§ 80. Biologico-Social Abnormality as Basis of Origin and Nature of 
Delinquency. 

Yet, aside from this, it is evident that this idea does not explain 
all the forms of delict and all the categories of delinquents. It 
considers too exclusively chance criminality (" criminalite oc- 

in the economic and moral organization of society. Tarde, who insists in holding 
to his psychological explanation of social facts (according to which all human evo- 
lution depends on invention and imitation, as if those were not superficial mani- 
festations of individual and social life, as I have pointed out in agreement with 
Durkheim), then comes to the question whether "to be content with terms like 
physical medium or social medium or even economic factor — entities which signify 
nothing or which may be resolved into accumulated individual actions — is pro- 
fundity or blindness." "Etudes de psychologie sociale" (pp. 98-99). 

And against Durkheim he strengthens the dose by saying, "It is a fetish, a 
'deus ex machina' of which the newer sociologists make use whenever embar- 
rassed, and it is time to brand this abuse which is really becoming disquieting. This 
explicative talisman is the medium! With this word uttered, all is said. The 
medium is the formula for everything and its illusory depth seems to conceal the 
emptiness of the idea" (p. 78). Very well: the observation is partly true. 
But it is especially so for those who, in speaking of the medium in sociology, forget 
the biological bases of human facts. 

1 Turati, "Le delitti e la questione sociale'' (Milan, 1883), replies to my articles 
later gathered in the volume on "Socialismo e criminalita " ; Battaglia, "La di- 
namicadel delitto" (Naples, 1886); Colajanni, " Sociologia criminale" ; Lacassagne, 
Tarde, Topinard, Manouvrier in the publications cited above; Baer, "Der 
Verbrecher" (Leipzig, 1893), p. 408; Gumplowicz, "Das Verbrechen als socials 
Erscheinung," in "l'Aula" (1895), No. 14. See also, Tcennies, Tavares, Ferri, Ga- 
rofalo, Puglia, on "Le crime comme phenomene social," A. S. S. S. (Paris, 1896), 
II, pp. 387 et seq. 



§80] FUNDAMENTAL OBJECTIONS TO DATA 121 

casionelle") In which we ourselves from the very beginning have 
always maintained the predominance of the social factors. A 
sufficient proof of this is our theory of the equivalents for penalty, 
which we will take up at a later point. 1 This oft-repeated affir- 
mation puts the question badly and the solution is still worse. 
It is the same as if one were to ask whether the air or the lung 
contributed most to the life of a mammal. They both contribute 
and that is the whole truth. 

Let us not be told that, admitting this, the social factors are 
always the real and first causes, because it is from them that 
individual organic and psychic anomalies and degeneration are 
derived by hereditary transmission: 2 this would be a Byzantine 
quibble like the discussion of the priority of the egg or the hen. 
In the indissolubility and infinite complexity of natural causes 
and effect, it is an illusory pretension to wish to find first causes, 
since it is certain that every cause is also an effect and every effect 
in turn becomes a cause. Moreover, bearing in mind what I have 
said above; namely, that economic and social conditions are, 
in their turn, a resultant of racial energies in a given telluric 
medium, and that there is a relatively autonomous develop- 
ment of each order of social facts in the field of economic condi- 
tions, — one sees that it is more positivistic to admit and define 
by scientific observations the respective and concomitant in- 
fluences of the different factors of crime, were it only because this 
bio-sociological diagnosis of crime does not take anything away 
from the truth of the socialistic prognosis, according to which, in 
a quite different economic and social environment, wherein 
every human being would be assured really human conditions of 
life and, hence, the development of his personality, the epidemic 
sources of crime would be dammed up, eliminating degeneracy 
through poverty in the masses and degeneracy through parasitism 
in the few. 

1 Post. By equivalents for. penalties, or more exactly, measures to be substi- 
tuted for penalties (" sostitutivi penali"), the author supposes the writer under- 
stands the measures which can be employed in the place of penalties, for the defense 
of society, by preventing crimes and by making them more rare. 

2 Loria, "Le teoria economica della constituzione politica" (Turin, 1886). 
See also Mucci, "II fattore sociale nella delinquenza secondo la scuola positiva" 
(Sansevero, 1898); Stinca, "Le milieu social comme facteur pathologique," E. N. 
(October, 1894). 



122 DATA OF CRIMINAL ANTHROPOLOGY [§ 81 

§ 81. Crime is a Phenomenon of Biologico-Social Abnormality. 

Hence, in conclusion, we return to our fundamental assertion 
which should control not only criminal anthropology but all the 
inductions of criminal sociology : that crime, like all other human 
acts, is a phenomenon of complex origin, both biological and 
physio-social, with different modalities and degrees according to 
the different circumstances of persons and things, of times and 
places. 1 

' It is important in this connection to say a few words of two new scientific 
drifts of thought pertaining to the relations between biology and sociology: the 
neo-Lamarckism and the anthropo-sociology. Neo-Lamarckism, which adds to 
the purely Darwinian theories of natural selection by survival of the fittest the 
theory of Lamarck on the influences of the medium and of the individual and 
hereditary adaptation of the beings living in this medium, — is a very accurate 
conception which has utility in the correction and completion of what was exclusive 
and unilateral in Darwinism. 

This doctrine, while confirming the biological base of social phenomena yet 
emphasizes the physio-psychic variability of individuals and species according to 
the variations of the medium and, hence, gives a scientific foundation to the theory 
of scientific socialism — scientific socialism is a theory which maintains that 
so-called human nature, declared by some as incompatible with the socialist regime 
of collective property, is not an immutable entity, but is, on the contrary, the 
product of biological factors combined with the influences of medium and there- 
fore variable with the latter. 

(See Biichner, "Lamarck, Cuvier, Darwin, et les neo-lamarckistes," R. R. 
(1 Aug. 1897); Setti, "II lamarchismo nella sociologia" (G§nes, 1896); Perrier, 
"La reponse de M. Spencer a, Lord Salisbury," in the "Revue internationelle de 
sociologie" (June, 1896); De Greef, " Transf ormisme social" (Paris, 1895), p. 
422; Kunstler, "Influence du milieu sur revolution individuelle," R. S. (19 June, 
1897); Vaccaro, "Basi del diritto e dello stata." Introduction; Fages, "L'evolu- 
tion du Darwinisme biologique," R. I. S. (July, 1898); Lombroso, "Les races et 
le milieu ambiant," in the R. S. (23 April, 1898). 

Anthropo-sociology (aside from the studies on social selection of which I shall 
speak later), on the contrary, represents an exaggeration, in an anthropometric 
rather than anthropological sense by reducing all the causes which determine 
social evolution to the cephalic index of the two alleged ethnic elements of Europe 
("homo europaeus," "homo alpinus," besides the "mediterraneus"). It asserts 
that the brachycephalic represent progressive energy and that the dolico-cephalic 
represent conservative inertia. It admits, however, that the constant elevation 
of the cephalic index is a law of anthropo-sociological evolution. Although this 
drift of thought represents a recall, which is not useless, to the biological or 
anthropological foundation of social facts, it nevertheless seems evident to me 
that in its formulae, especially as given by Lapouge, it represents a strange mis- 
conception of the complexity of bio-social phenomena which is the most certain 
induction of contemporary science. It does not seem to me therefore destined (at 
least in this direction where it has made the most stir) to have a lasting success, 
and it will doubtless have the same fate as, in an analogous field, did the hypotheses 
of Weissman whose vogue is past. See Ammon, "Die natiirliche Auslese beim Men- 
schen" (Jena, 1893); Lapouge, " Les selections sociales" (Paris, 1896); "Les lois 
fondamentales de l'anthropo-sociologie," R. S. (30 October, 1897), and R. I. S. 



§81] FUNDAMENTAL OBJECTIONS TO DATA 123 

We have a last observation to make in this connection. Cola- 
janni thought he struck a fearful blow at the theory of anthro- 
pological factors in crime, by establishing (but with many grave 
errors which I have pointed out in my Italian editions) that "the 
criminality of a region in Italy is deployed in the inverse ratio to 
organic degeneracy." In similar fashion, Durkheim, in order to 
deny that the psychopathic conditions of the individual are 
among the causes of suicide, remarks that the frequency of suicide 
is in inverse ratio to that of insanity. Now both of these observed 
facts, to the extent that they are true, are explicable by the law 
of compensation between both forms of psychopathic condition. 
The pathological or degenerative condition which shows itself 
by crime does not show itself under other forms; or vice versa, if 
it manifests itself by suicide or insanity or ordinary disease, it 
in that way eliminates the sources of criminality. 1 Goethe has 
expressed this in an admirable synthesis which applies alike to 
individuals and to the population of a whole region and to the 
collectivity of each social class. He says: "Since the budget of 
Nature is limited, if she expends too much energy in one direction, 
she economizes in another." 

We have thus finished the examination of the principal objec- 
tions which, in a more or less positivistic or scientific field, have 
been urged against the method, the foundation, and the principal 
data of criminal anthropology. We may therefore conclude that, 
apart from the inevitable partial corrections, none of the criticisms 
made is able to take from the data of criminal anthropology 
that value which it is quite capable of demonstrating by facts 
while progressing and becoming more perfect every day : and this, 
in spite of all the criticisms of pure ratiocination, proves that it 
is advancing, notwithstanding inaccuracies and partial errors, 
along the great highway of positivistic and fruitful truth. One- 
sidedness is the organic defect of all the objections made to the 
data of criminal anthropology. The critics have always wished 

(November, 1897); Amman, "Histoire d'une idee d'anthropo-sociologie," in the 
"Rundschau" (November, 1896), and in the R. I. S. (March, 1898); and FouilUe, 
ibid, (May, 1898); Winiarsky, "L'anthropo-sociologie," in the "Devenir social" 
(March, 1898); Closson, "La hierarchie des races europeenes" R. I. S.(June, 1898); 
Livi, "La distribuzione geographica dei caraterri antropologica in Italia," in the 
R. I. S. (July, 1898). 

And for criticism, Loria, L'antropologia soeiale," in the "Rivista moderna 
(December, 1898). 

1 A similar idea is maintained by Marandon de Montyel, "Rapports de la cri- 
minalite et de la degenerescence," A. A. C. (May, 1892). 



124 DATA OF CRIMINAL ANTHROPOLOGY [§ 81 

to assume, for the convenience of controversy, that the new 
science considers crime as a solely and exclusively biological 
phenomenon; whereas, from the beginning, its founders, while 
provisionally separating for exigent reasons of study this or that 
side of the criminal phenomenon, have nevertheless always 
affirmed its complex natural determination, both in the biological 
order and in the physical and social orders. Criminal sociology is 
inseparable from criminal biology; and such, affirmatively, is 
the last result of our study. 1 

1 This is also what is thought by Sergi, "Attorno alia sociologia criminale," 
in the R. I. S. (November, 1897), and in "I dati antropologici in sociologia, id. 
(Jan., 1898); and by De Luca, " Antropologia criminale e scuola positiva," S. P. 
(January, 1898). 



CHAPTER III 

NATURAL CLASSIFICATION OF CRIMINALS 

Precedent. Habitual and occasional criminals. Five fundamental categories: 
Insane, born, habitual, occasional, and by passion. Gradation. Numeri- 
cal proportions. Other classifications. Conclusions. 

§ 82. History of the Distinction of Criminal Categories Prior to Lombroso. 

As I have said, Lombroso, in the first and even in the second 
edition of his work, had attributed indiscriminately to the whole 
class of delinquents the sum total of abnormal characteristics. 
He thus made the criminal man, "uomo delinquente," a sort of 
abstract type like Quetelet's average man, "homme moyen." 
On the contrary, it has been generally observed that only some of 
the criminals present the sum of abnormalities, and that it is there- 
fore necessary to recognize different categories among them, in 
order exactly to define the real range of this anthropological ma- 
terial. It is true that this idea of the distinction to be made 
among criminals was announced by several observers even before 
Lombroso, but it was received in criminal sociology only when 
my criticism of Lombroso's work afforded occasion explicitly to 
insist on it and to make it less incomplete. 

Before Lombroso's time, I find that Gall, for example, as early 
as 1825, speaking of remorse in criminals, notes the distinc- 
tion between those who are carried away by passion and those 
who obey innate instincts. 1 Toulmouche, in 1836, and a little 
earlier Diey, gave the first indications of a distinction between 
delinquents who have been urged to crime by poverty, ignorance, 
evil counsel, or violent passions, and those who are originally 
vicious, dominated by a sort of instinct for fraud, theft, and other 
crimes, — men "who always resist the controlling influences of 
any moral regime." 2 

In 1840, Fregier, relying upon the memories of Vidocq, who 

1 Gall, "Sur les fonctions du cerveau" (Paris, 1825), I, 352. 

2 Toulmouche, "Travail historique statistique, medical hygienique et moral 
sur la maison centrale de Rennes," in the "Annales d'hygiene publique" (1835), 
XIV, p. 54. 

125 



126 DATA OF CRIMINAL ANTHROPOLOGY [§ 82 

was a convict before he was a police agent, 1 distinguished differ- 
ent kinds of criminals, describing the various criminal specialties 
and grouping them into three great categories : professional thieves, 
chance thieves ("voleurs d'occasion") through weakness of char- 
acter, and thieves through necessity. And he finally divided them 
into two groups by their greater or lesser repugnance to the shed- 
ding of blood in the commission of their thefts. 2 This purely 
descriptive classification was reproduced and supplemented by Du 
Camp, who separates, according to the jargon of the criminals 
themselves, the "basse pegre" (non-sanguinary and non-violent 
thieves) from the "haute pegre," represented by the "escarpe," 
who is "the type of a cold and systematic tendency toward as- 
sassination," who kills first and then robs. 3 Lauvergne also dis- 
tinguishes different categories in murder and rape according 
as the crime has been committed through impulse ("entralne- 
ment") or an undeveloped will ("volonte arr£tee"), or through 
innate brutal instincts. 4 Then come the classifications of 
Ferrus, 6 Despine, Thompson, Maudsley, and Nicholson, who, 
taking intellectual development as the distinctive criterion, reach 
a distinctive between accidental and occasional delinquents and 
real and habitual criminals, a truly fundamental distinction 
which was afterwards taken up by many other observers of prison 
life, such as Valentini, Bittenger, Sewichey, Sollohub, Hastings, 
Du Cane, Guillaume, Virgilio, Morselli, Michaux, Petit, and 
Hurel. 6 

1 "Memoires de Vidocq" (Paris, 1828), and "Reflexions sur les crimes et les 
recidives" (Paris, 1844). 

2 Fregier, "Des classes dangereuses de la population" (Brussels, 1840). 

3 Du Camp, "Paris, ses organes, ses fonctions et sa vie," in the "Revue des 
Deux Mondes" (1869), and (Paris, 1875), vol. Ill, cap. XII, § 2. 

4 Lauvergne, "Les forcats" (Paris, 1841), Caps., IV, VIII. 

6 Ferrus, "Des prisonniers" (Paris, 1850), p. 185; Despine, " Psychologie 

naturelle" (Paris, 1868), I, pp. XII, XV; II, pp. 1, 169, 279; Thomson, "The 

Psychology of Criminals," (1870); Maudsley, "Responsibility in Mental Disease," 

pp. 30-33; Nicholson, "The Morbid Psychology of Criminals" J. M. S. (1872), 

p. 222, and (July, 1874), pp. 167, 168. 

6 Valentine, "Das Verbrecherthum im Preussischen Staate nebst Vorschlagen zu 
seiner Bekampfung" (Leipzig, 1879), pp. 110-165; Bittenger Sewichey, "How far is 
Society responsible for crime?" R. C, I, 156; Sollohub, "La questione carceriara 
in Russia," id., Ill, 77; Hastings, Address before the Society for the Advance of 
the Social Sciences; Du Cane, "Judicial statistics" (1873), id., V, 155; "The 
Punishment and Prevention of Crime " (London, 1885) ; Guillaume, " Le cause prin- 
cipali dei criminali ed il mezzo piu efficaceper prevenirli," ibid., VI, 46; "Comptes 
rendus du congres penitentiare de Stockholm" (Paris, 1879), I, 469; Virgilio, 
"Sulla natura morbosa del delitto," R. C, IV, 335-336; Morselli, "Del suicidio 
dei delinquenti," R. F. (1875), p. 247; Michaux, " Etude sur la question des peines " 



§ 83] NATURAL CLASSIFICATION OF CRIMINALS 127 



§ 83. Conclusions from History of Distinctions of Criminal Categories Prior 

to Lombroso. 

From these labors which preceded the work of Lombroso we 
may detach three instructive facts. 

A. The persistence, especially among men of experience, direct- 
ors of prisons or prison doctors, of the idea that there are always 
some of the delinquents who are incorrigible and unyielding to 
the action of any penitentiary regime, mild or severe. This idea, 
while combated by moralists and jurists, far removed from the ob- 
servation of prisoners, has been given the most positive confirmation 
and the most luminous explanation by anthropological researches. 

B. The supremacy, in the different classifications of delinquents, 
of criteria of simple prison discipline or purely descriptive variety, 
to the detriment of criteria really based on the origin and causes 
of crime. It is the latter that are important to the criminal so- 
ciologist, since he must seek the causes to find the remedies. 

C. The persistence of the intuitive distinction between the two 
great categories of habitual delinquents and occasional delinquents. 
If, as Sergi * says, the character of every individual is the result, 
so to speak, of the superposition of different strata, from the 
primitive and savage to the more recent and civilized, one can 
easily understand how, in present society, the individuals whose 
organic and psychic constitution is made principally of the deeper 
and more anti-social strata, must show in a permanent way, a 
corresponding activity, which is the index and the effect of their 
constitution; and hence they are the delinquents by congenital 
tendency, the incorrigibles. On the contrary, the individuals 
whose constitutions are normally formed, in greater part, from 
the more recent and social strata, are sometimes, in case of 
extraordinary stress ("entralnement"), overthrown by the vol- 
canic eruption, as it were, of the deep anti-social strata and 
thus become accidental and occasional delinquents. Even 
among the Romans there was an inkling of this fundamental 
distinction 2 and later in the Medieval theory of the "con- 

(Paris, 1874), p. 77; Petit, "Rapport sur la suppression de la recidive," in the 
"Bulletin de la Societe generate des prisons" (Paris, 1878), II, 168; Hurel, "Coup 
d' oeil psychologique sur la population de la maison de Gaillon," A. M. P. (1875), 

I, pp. 161 and 374. 

1 Sergi, "La stratificazione de la delinquenza," R. F. S. (April, 1883), and 
Ferri, "Socialismo e criminalita," Cap. Ill (Education and Criminality). 

2 Carmignani, "Teoria della leggi di seienza sociale," 1, III, Cap. XI, 2. 



128 DATA OF CRIMINAL ANTHROPOLOGY [§ 83 

suetudo delinquendi," when different Italian and French i stat- 
utes, Article 161 of the Carolina and the jurisprudence of the 
practitioners 2 had established the death penalty for theft thrice 
repeated, because, as Farinaccio said, "delictorum frequentia 
delinquentis incorreggibilitatem denotat." This distinction has 
been embodied in the modern law of England, 3 a country where 
it is not necessary to surmount the authority of strongly developed 
juridical theories and where, consequently, the practical necessities 
of life are more promptly impressed upon the lawmakers of a 
positivist people. In fact, there have already been realized in 
that country criminal reforms which would seem, and do seem, 
to us Latins and men of theory, like sacrilegious encroachments 
upon the abstract principles which we have imposed upon ourselves 
and which we would see triumph even over the evident necessities 
of every-day life. Finally, this distinction has been judged 
natural by some theoretical criminalists far removed from anthro- 
pology, such as Rossi, 4 Carrara, Ortolan, Wahlberg, Brusa; but 
nevertheless, guided only by an abstract intuition and a lesser 
familiarity with the positivist method, they have been unable to 
draw from it any systematic conclusions helpful to the social 
defense against crime. 

These are conclusions of fact drawn from the first observations 
on crime and criminals that now confirm once more my induction 
on the different categories of criminals, an induction by which 
the scientific and practical range of anthropological data can be 
exactly demonstrated. 

1 Hoorebeke, "De la recidive" (Ghent, 1846), p. 75. 

2 Claw, "De furtis"; Gandino, "De furta et latris''; Gothofredo, "In legibus 
3, Cod. de episco. aud.; Farrinaccio, "Practio criminalis," Quaest. 23; "De delicti* 
et poenis," Quaest. 18. 

3 Habitual Criminals Act (1869), and Prevention of Crimes Act (1871), which 
put under police surveillance all persons of evil life, recidivists, etc. In 1856, the 
Parliamentary Commission of Inquiry on the results of the law of 1853 relative 
to conditional liberty, recommended that habitual delinquents should be excluded 
from the benefits of the ticket of leave. Nocito, "Delia liberta condizionale" 
(Rome, 1880), p. 85. Even in the French law on the deportation of recidivists 
(May, 1885), and in the recent Italian law on habitual recidivists, this distinction 
has been recognized, although in an incomplete way. The distinction, as we 
shall see in Chap. rV, has always impressed itself on the later penal laws (condi- 
tional sentence, conditional liberation, imprisonment for an indeterminate period, 
etc.). 

4 toii "Trattato di diritto penale" (Turin, 1856), 1, III, Cap. IV and VIII, 
pp. 450 and 413; Carrara, "Programma," §1067; Ortolan, "Elements de droit 
penal, 1187; Wahlberg, "Das Mass und der mittlere Mensch im Strafrecht" (Vi- 
enna, 1878), and in "Gesammelte Kleinere Schriften," 1, 136 and 111,55; his report 



§85] NATURAL CLASSIFICATION OF CRIMINALS 129 
§ 84. Applicability of Anthropological Data Restricted to Certain Categories. 

From the study of works on criminal anthropology and primarily 
from my systematic observations of convicts from the psychic 
point of view, I have derived the conviction that these anthro- 
pological postulates do not apply, at least in their complete and 
characteristic entirety, to all those who commit crime. They 
apply, by accumulating, to only a certain number of these, who 
may be called incorrigible, habitual, or born criminals. Outside 
of these is the class of occasional delinquents, in whom the ana- 
tomical, pathological, and psychic characteristics which give the 
typical figure that Lombroso calls criminal man, "uomo delin- 
quente," are not found or are found only in lesser numbers. This 
separation, which I indicated as early as 1878 in a criticism of 
Lombroso's work, 1 and more fully developed in an article pub- 
lished in 1880, 2 can be demonstrated conformably to the positivist 
method by two orders of proofs: 1st, by the synthetic results of 
anthropological researches on delinquents; 2d, by statistical data 
on habitual crime ("recidive") and on the forms of delinquency 
heretofore studied by the anthropologists. As to the results of the 
researches of criminal anthropology, they show that in the mass of 
delinquents, there are from fifty to sixty per cent, who have 
only a few organic and psychic anomalies, while about a third 
show an extraordinary number and a tenth show none at all. 

§ 85. Statistics of Criminal Relapse. 

As to the statistical data, the first and most important which 

present themselves are those which relate to habitual crime. 

This is the last manifestation of individual tendencies and, hence, 

of the differing capacity of delinquents for crime, although in the 

phenomenon of criminal relapse, a large part is due to the social 

factors, as we shall see in treating of habitual criminals. With 

to the Congress of Stockholm on the methods of attacking recidivity, C. R. I. 
App., p. 169. Professor Wahlberg, of all the classical criminalists, has drawn the 
most practical juridical consequences from this distinction. He recommends 
in his work, "Das Mass," not only a special treatment of reclusion for habitual 
criminals who form a category "sui generis," but also a special measure of pun- 
ishment. Adhering to the old idea of moral responsibility, but with a practical 
criterion, he says: "Habitual crime is the expression of a psycho-moral degeneracy 
in the evildoer which has become permanent and as such is essentially different, 
both in culpability and in punishability, from the evil onset of the occasional 
delinquent; Brusa, C. R. (Stockholm, 1879), I, 463, 620. 

1 Ferri, "Studi critici sulPUomo delinquente di Lombroso," in the "Rivista 
europea" (1878), p. 283. 

* Ferri, "Diritto penale ed antropologia criminale," A. P. (1880), I, 476. 



130 DATA OF CRIMINAL ANTHROPOLOGY [§ 86 

reference to the statistics of criminal relapse we are at a disad- 
vantage because of the scarcity and unreliability of the materials, 
due to differences of legislation, methods, and means of statistical 
study in various countries which do not always afford even the 
still imperfect reliability of the system of judical record bureaus in- 
troduced in Italy in 1865, or of that of the Danish system of Police 
Registry. 1 Not only was "the Congress of London forced, for 
want of documents, to leave many questions unsolved, especially 
with respect to relapse," as Yvernes remarked at Stockholm, but 
even to-day we still see as between one country and another 
certain differences in this matter the real import of which escapes 
us. 2 In bringing together all the material that I found scattered 
among scientific works and official statistics for my study of penal 
law and criminal anthropology, I was able to offer some outline 
of international statistics on criminal relapse; yet even to-day, 
after studying other publications, such as the report of Sterlich, 3 
and the "Enqueue sur la recidive en Europe," made by the "So- 
ciete generate des prisons en France," 4 1 would be unable to enrich 
it with any important data: therefore I do not consider its repro- 
duction necessary. 

§ 86. Criminal Relapse the Rule. 

Although it is impossible to fix the maximum of recidivists, 
it may be said as an approximation which is certainly within the 
actual figures, that criminal relapse generally oscillates around a 
percentage of from fifty to sixty in Europe. I say, "certainly 
within the actual figures," because, for instance, while the decen- 
nial statistics of the Italian prisons for the year 1879 gave fourteen 
per cent, of recidivists in the penetentiaries ("bagnes") and thirty- 
three per cent, in the other penal houses for men, yet I met with 
thirty-seven per cent, at the penitentiary of Pesaro and sixty per 
cent, at the prison of Castelfranco. Even if we should consider 

1 The official figures on cri min al relapse are always under the facts because 
the personal identity of the most cunning and most recidivist delinquents very 
often escapes the authorities, through their changes of name and even sometimes 
of their appearance. 

1 shall speak later of the anthrometric systems of identification of criminals. 

2 Yvern&s, C. R. (Stockholm, 1879), I, 464. 

3 Sterlich, "Statistique de la recidive," report to the International Congress 
of Statistics at Budapesth (1876). See also, Foldes, "Die Statistik der Recidivitat 
in Ungarn," in the "Bulletin du Institute International de Statistique" (1892), 
VI, f. 1, p. 93; "Einige Ergebnisse der neueren criminalstatistik " ("Die Recidi- 
vitat"), in the "Zeitschrift fiir gesammelte Strafrecht Wissenschaft," XI, p. 568. 

4 B. S. G. P. (March, 1878 et seq.). 



§86] NATURAL CLASSIFICATION OP CRIMINALS 131 

the proportion unusual in these two particular institutions, this 
clearly shows the insufficiency of the official data on criminal 
relapse in Italy as well as in all other countries, as pointed out in 
the criticisms of Kobner. 1 Aside from this general fact, which 
shows as Lombroso 2 said and Espinas 3 repeated, that criminal 
relapse constitutes not the exception but the rule in criminal life, 
we are able to find in statistics an indication of the forms of crime 
in which criminal relapse is more predominant and where, con- 
sequently, one finds the greatest number of habitual or incorrigible 
delinquents. These are the researches on specific relapse in crime 
that I began in 1880, in the study mentioned above. I can now 
supplement them with the aid of more recent material from French 
statistics, since these permit of making a more accurate and more 
complete study than do the Italian statistics, where the crimes are 
massed in more or less homogeneous groups. 

France. Recidivist Convicts 1877-1881, 
Courts of Assize 
Crimes Crimes 

(Against the person) p. 100 (Against property) p. 100 

Violence against public officers 85.8 Thefts in churches 74.3 

Bigamy 59.3 Thefts, simple 71.7 

Wounding parents or grandpar- Robbery with violence, not on 

ents 55.9 the highway 66.0 

Riot 55.5 Robbery, with violence on the 

Kidnapping of minors 46.2 highway 62.4 

Sexual assaults on adults 44.0 Burning buildings not inhabited, 

Wilful murder (assassination) . . 42.3 woods, etc 59.8 

Parricide 41.7 General average 58.5 

Manslaughter (homicide) 39.4 Barratry 50.0 

Sexual assaults on children 38.5 Theft by ' servants '.',[[[[[['.]]]'. 44.2 

Attempts agamst railways. .... 37.5 Counterfeitmg 43.8 

Serious wounds followed by death 36^8 Forgery> priv ate writings 42.5 

General Average 35.8 Burning inhabited dwellings 41.5 

Abortion 30.0 Forgery, commercial paper 38.3 

Perjury 26.7 Forgery, public documents 37.0 

Sequestration 18.8 Fraudulent bankruptcy 35.3 

Poisoning 16.7 Abuse of confidence by domestic 

Infanticide 6.0 servant 32.5 

Stealing, substitution, or aban- Extortion 30.7 

doning children 4.9 Embezzlement of public funds ... 28.5 

Robbing the mails by postal em- 
ployees 

Smuggling by customs officers . . . 

1 Kobner, "Organisation de la statistique des recidives," in the "Bulletin de 
l'Union international de droit penal" (1895), p. 45. Gordon, in scrutinizing the 
judicial records at Lille, found eighty per cent, of recidivists. B. U. I. D. P. (1894). 
p. 406. 2 Lombroso, "L'uomo delinquente," 5th ed., I, 471. 

3 Espinas, "La philosophie experimentale en Italie" (Paris, 1880), p. 162. 



132 DATA OF CEIMINAL ANTHROPOLOGY [§ 87 

France. Recidivist Convicts, 1877-1881 {cont'd.) 
Correctional Tribunals 
Delicts p. 100 Delicts p. 100 

Infractions of surveillance 100.0 Outrage to public morality 34.5* 

Infraction of expulsion of foreign Public outrage to decency 32.2 

fugitives 93.0 Voluntary wounds and blows 31.0 

Infractions of interdiction to so- Unlawful opening of cafes, inns. . 27.7 a 

journ 89.0 Unlawful practice of medicine or 

Drunkenness 78.4 pharmacy 26.6 

Vagabondage 71.3 Contraventions of railway regu- 

Begging 65.7 lations 25.3 

Fraud (escroquerie) 47.8 Hunting or carrying prohibited 

Insult to public officers 46.8 arms 24.2 

Forcible entry 45.3 Breach of good morals, tending 

Thefts 45.2 to corruption 23.8 

Breach of trust 43.8 Simple Bankruptcy 23.6 

General average 41.9 1 Insult to ministers of religion ... . 20.4 2 

Fraudulent sales of merchandise . 16.7 



Biot, resistance 40.3 

Written or verbal threats 39.6 

Prohibited weapons, etc 37.3 

Political, electoral, and news- 
paper delicts 35.7 



Defamations, insults, calumnies . 14.2 
Rural delicts 12.0 



§ 87. Proportion of Recidivity in Crimes Against the Person. 

In crimes against the person we find that the offenses with a 
recidivity higher than the average are homicide under the more 
serious forms and criminal assaults. There are high figures also 
for violence and resistence to public functionaries (as in Italy) , for 
bigamy, kidnapping of minors, and woundings. But these figures 
have no great importance except for woundings, which resemble 
homicides (in the assizes) because they are drawn from very weak 
statistics or which give very different results. Woundings are, 
as we shall see, more worthy of attention in the recidivity of crime. 
Further, these crimes against the person confirm the observation 
already made, — that simple homicide has fewer recidivists and 
hence has a more occasional character than qualified homicides; 
and further, that not all the forms of qualified homicide (for in- 

1 The general average of recidivists among those sentenced by the tribunals 
varies in the official French statistics, because the percentage is based on the whole 
number of persons sentenced not only for delicts but also for contraventions (with 
the exception of forestry contraventions as is said in the Reports for 1877, p. XIX, 
and 1879, p. 18). I believe that it would be more exact to calculate the percentage 
on the total of delicts only, which are distinguished in the French statistics, thus 
eliminating the figures for recidivists of contraventions of the customs laws ("les 
octrois, douane"), fishing laws, etc. 

2 For 1877-1879 only. 



§ 89] NATURAL CLASSIFICATION OF CRIMINALS 133 

stance, infanticide) belong to habitual criminality. This is be- 
cause it is the occasion that gives rise to them, as we see also in 
abortion and abandonment of children. Still, let us note that the 
lesser number of recidivists recorded for poisoning, depends in my 
opinion, on other psychological reasons that I have indicated in 
my study of homicide. 

§ 88. Proportion of Recidivity in Crimes Against Property. 

In crimes against property theft shows the largest number of 
recidivists, with the exception of its most occasional forms, such 
as thefts and breaches of confidence committed by servants. So 
also, forgery of commercial paper and bankruptcy, in comparison 
with other frauds and other crimes which depend less upon the 
sudden vicissitudes so frequent in finance and commerce, show a 
more occasional character, which reaches its maximum in the 
embezzlement of public funds or appropriation of postal credits by 
employes, or in smuggling by customs officials. These offenses, 
in fact, by the rarity or absence of recidivists, show that they are 
due rather to occasional temptations than to innate criminal ten- 
dencies. In the correctional tribunals in France as in Italy, it is 
a fact that the most frequent recidivists belong also to habitual 
criminality (vagabondage, swindling, thieving) except certain 
offenses which either naturally ought to show a higher recidivity 
because it is the very condition of their existence, such as in breach 
of surveillance; or which have the nature of a contravention and 
may be an accompanying accessory of habitual delinquency, such 
as drunkenness, insult to public officers, violation of banishment, 
prohibited residence, etc. Yet, as I have said, these figures partly 
correct the results relative to certain crimes, since it is here seen 
that resistance, woundings, and simple thefts, in their more com- 
mon forms, give a lesser recidivity than in the Courts of Assize 
just because the mass of simple delicts falling within the jurisdic- 
tion of the minor courts (tribunaux) embraces a larger number of 
cases of a purely occasional nature. The same observation ap- 
plies to bankruptcies, rural delicts, fraud in mercantile sales, 
defamations, and insults which constantly approximate the type 
of the occasional delict. 

§ 89. Statistics of Relapse Reinforce Conclusions of Anthropology. 

Therefore the statistics of recidivity in general and the statistics 
of the different kinds of offenses again confirm, in an indi-vt 



134 DATA OF CRIMINAL ANTHROPOLOGY [§ 90 

way, the observation that of the total number of persons who 
commit crimes only some show the individual anomalies ascer- 
tained and defined by anthropology. The question naturally 
occurs : To how high a figure does the quota of the most abnormal 
delinquents rise in comparison with those who are less removed 
from the normal type? The answer may be given directly by the 
results of anthropological researches or indirectly by statistical 
inquiries. As to the former, we are far from having the elements 
of an exact and complete judgment in the labors of the anthropol- 
ogist because these proportions naturally vary with the different 
categories of crimes, since it goes without saying, as I have already 
observed of the criminal type, that in homicide, for instance, the 
proportion of very abnormal individuals is much greater than, 
for example, among the authors of blows and woundings and 
among thieves. 

§ 90. Larger Percentage of Habitual Delinquency. 

Nevertheless, taking the number, even in the result given by 
Lombroso in the last edition of his "Uomo delinquente" as a mere 
approximation, we may say that the anthropologico-criminal 
characteristics are met with in a proportion of from forty to fifty 
per cent, of the total number of criminals. 

Colajanni has some objections (derived from his usual syllogis- 
tic method and not from experience) to this proportion of habitual 
delinquency. He says that if the habitual delinquents, that is to 
say, the recidivists, were subtracted, the born-criminals would 
make but an insignificant fraction "which a liberal calculation 
would not bring above five per cent." 

Without discussing this very arbitrary figure, it should first of 
all be remarked that, whatever Colajanni may say, all recidivists 
are not habitual criminals only, since recidivity is also a peculiar- 
ity of born-criminals. Italian judicial statistics for 1887 show that 
of five hundred and twenty-three prisoners convicted for qualified 
homicides, eight had previously been convicted of qualified hom- 
icide, — a fact of enormous significance even from the standpoint 
of the defensive efficiency of the penal function. Seventy others 
had previously been convicted of other assaults against the person; 
and a hundred and six for offenses of other kinds. Of one thou- 
sand six hundred and ninety-four convicted of simple homicide, 
sixty-three were recidivists of homicide; a hundred and eighty- 
eight were recidivists of other assaults against the person; and 



§90] NATURAL CLASSIFICATION OF CRIMINALS 135 

three hundred and six of other crimes. 1 This proves, therefore, 
that these, who were for the larger part born-criminals, rather than 
delinquents by acquired habit, also showed a higher ratio of reci- 
divity. That born-criminals and habitual criminals furnish forty 
or fifty per cent, of the mass of delinquents, is a conclusion that 
finds support in the following fact: Born-criminals and habitual 
criminals have a delinquency which is peculiar to them and which 
statistics and the studies of criminal anthropology fix in a certain 
few forms of crime which are typical of them. 

Outside of these forms, criminal science knows a very much 
larger number of delicts. Ellero* in his critical study of the Ger- 
man penal Code said that he had counted two hundred and three 
kinds of offenses, both crimes and delicts. 2 I, myself, find that 
there are in the Italo-Sardinian Code about a hundred and eighty 
crimes and delicts, about a hundred and sixty in the Tuscan Code, 
about a hundred and fifty in the French Code, and two hundred 
and one in the new Italian Penal Code. The forms peculiar to 
congenital and habitual delinquency embrace about one tenth of 
the total of classified delicts. It is not difficult to believe that, as 
a general rule, the delicts committed by incorrigible or habitual 
criminals are not often political offenses nor delicts of the press. 
Nor are they delicts against religion, corruption of public offices, 
bribery, embezzlement, usurpation of titles, or abuse of authority; 
nor slanders, perjuries, subornation, adulteries, incests, and rapes; 
nor infanticides, attempts at abortion, substitution of children; 
nor disclosure of secrets; nor refusal to do required service; nor 
damage to real property, bankruptcies, violations of domicile, 
obstructions to the exercise of political rights; nor illegal deten- 
tions, duels, insults, defamations, and the like. 

Aside from the criterion of classification, statistics must be 
taken into account, in order to see to what extent the forms of 
habitual delinquency enter into the total, it being, of course, 
understood that the relative frequency has a large variation for 
each delict. With this object in view I took occasion, in the study 
cited above, to make some researches of which I give here the most 
important conclusions. 

1 See Bodio, "Relazione della delinquenza nel 1887," in the "Atti della com- 
misione di statistica giuridiea" (Rome, 1889). 

2 Ellero, in the "Opuscoli criminali" (Bologna, 1874), p. 457. 



136 



DATA OF CEIMINAL ANTHROPOLOGY 



C§91 



Habitual Delinquency 


Italy 


Fhance 


Belgium 


Wilful Murder, Manslaughter, 
Robbery, Association of Crim- 
inals, Rape, Brigandage, Arson, 
Vagabondage, Swindling, Forg- 
ery. 


(0 

.a 

en 

CO 

< 


a 

a 
.a 

H 


3 

o 


cq 

CO 


d 


3 

o 


.a 

CO 
CO 

< 


c8 

a 
-a 


$ 
o 
H 


Relation of habitual delinquency 
to the total number of convicts 


% 

84 


% 
32 


% 
38 


% 
90 


% 
34 


% 
35 


% 

86 


% 

30 


% 
30 



That is to say, in the mass t)f convicted delinquents there is 
an habitual delinquency of about forty per cent, in Italy and a 
trifle less in France and Belgium. This difference is partly due, as 
to Belgium, to the fact that vagabondage is not included; but 
more especially to the fact that in other countries certain forms 
of habitual criminality are less frequently met with. These are 
unfortunately much more frequent in Italy, such as homicide, 
armed robbery, and associations of criminals. 1 This difference in 
the totals, increasing for Italy and decreasing for France and Bel- 
gium, has a more important significance. In Italy the increase 
can only be explained by a stronger proportion of the forms of 
habitual delinquency, which is all the more serious since we ob- 
serve an increase, also, in the occasional and contraventional 
forms of criminality, whilst in France and Belgium the propor- 
tional diminution of habitual delinquency may depend upon a real 
decrease in that form or, on the contrary, to an increase of occa- 
sional and contraventional crimes, either by an actual growth in 
numbers or by the effect of new laws. 



§ 91. Percentage in Habitual Delinquency Between "Assizes" 
and "Tribunals." 

Another fact is shown by this table; namely, that habitual 
delinquency, in Italy as well as in France and Belgium, is more 
frequently met with in the delicts within the jurisdiction of the 

1 The same calculations made for the years 1891-1895 would give a total of 
44 per cent, for Italy; in France 96 per cent., in the Assizes, 25 per cent., in the 
Tribunals, and a total of 26 per cent.; in Belgium, 95 per cent, in the Assizes, 25 
per cent, in the Tribunals, and a total of 25 per cent. 

2 This difference in totals — an increase for Italy and a decrease for France 
and Belgium — has, however, a different significance in the two cases. In Italy 
the increase can only be. accounted for by a greater proportion of the forms of 
habitual deliquency, which is all the more serious since we find there also an 
increase in the occasional and contraventional forms of criminality; whereas. 



§ 91] NATURAL CLASSIFICATION OF CRIMINALS 137 

Assizes (except cases of robbery and vagabondage) because the 
Assizes try principally cases which are at the foundation of prim- 
itive criminality, — of the criminality which is most natural to 
the quasi-savage and to the man least changed by the progress of 
social life. 

If we should now seek the proportions in which habitual de- 
linquency is distributed between the Assizes and the Tribunals 
we would find that the latter pass on a greater number of cases 
belonging to their jurisdiction, because, as in the zoological scale 
there is greater fertility in the lower degrees, so in the criminal 
scale the less serious delicts, such as swindling and vagabondage, 
are likewise more numerous. For example, in the thirty-eight per 
cent, of habitual delinquency which is the total for Italy, thirty- 
two per cent, belong to the Tribunals and only six per cent, to the 
Assizes; in France with a total of thirty-five per cent, thirty-three 
per cent, are in the Tribunals and two per cent, in the Assizes; in 
Belgium with thirty per cent., twenty-nine per cent, belong to the 
Tribunals and one per cent to the Assizes. Now, if in the figures 
for habitual delinquency such as they are found in the total of 
persons convicted by the Assizes and Tribunals, the effective nu- 
merical frequency were observed, it would be found that thefts 
("vols") are the most numerous in Italy (twenty per cent.) as well 
as in France (twenty-four per cent.) and Belgium (twenty-three 
per cent.). Starke found the same thing in Prussia where unlaw- 
ful appropriation of property forms thirty-seven per cent, of the 
total delinquency. 1 In the second rank in Italy come vagabond- 
age (five per cent.), the different homicides (four per cent.), 
swindling and fraud (three per cent.), robbery with violence (two 
per cent.), forgery (0.9 per cent.), violations and associations of 
criminals (0.4 per cent.), and in the last place, arson (0.2 per cent.) ? 
Similar figures are found in France and Belgium for vagabondage 

in France and Belgium the proportionate decrease of habitual delinquency may 
depend either on a real decrease in this habitual delinquency or on an increase 
of occasional and contraventional delicts, as a real increase of number or as the 
effect of the creation of new laws. 

1 Starke, "Verbrechen und Verbrecher in Preussen, 1854-1878" (Berlin, 1884), 
p. 92. 

2 Beltrani-Scalia, "La riforma penitenziaria in Italia" (Rome, 1879), pp. 82, 
et seq. See also Bournet, "De la criminalite en France et en Italie" (Paris, 1884), 
and the official volume "Movimento della delinquenza nel 1873-1884, con. Ap- 
punto, di statistica internazional" (Rome, 1886), which was published on my ini- 
tiative by the commissioner for judicial statistics. See also the later volumes of 
criminal court statistics. See also Bosco, "La delinquenza in alcuni stati d'Europa" 
(Rome, 1899). 



138 DATA OF CRIMINAL ANTHROPOLOGY [§ 92 

and for swindling, while assassinations, homicides, brigandage, 
arson, and associations of criminals are much less. The inverse is 
true of violations which are more common in France (0.5 per cent.) 
and in Belgium (one per cent.) than in Italy. On the other hand, 
the curious observation is made in Italy that during the period of 
forced currency, which lasted until 1900, and which put a much 
greater quantity of paper money in circulation, there was a larger 
proportion of counterfeiting (0.4 per cent.) than in France (0.09 
per cent.) and Belgium (0.04 per cent.); and thus the barren 
figures prove that I was right when I said elsewhere what I shall 
have occasion to say again further on: that in order to diminish 
the crime of counterfeiting, the substitution of coin for paper 
money is more effective than the maximum of hard labor. 

§ 92. Five Categories of Criminals. 

Having thus demonstrated by means of anthropology and 
statistics the reality of this basic distinction between habitual 
and occasional delinquents of which so many observers had already 
an intuition, but which had as yet taken no definite form, we 
have established the starting-point for those successive distinc- 
tions which the study of facts led me to introduce into criminal 
science and which have since been accepted under more or less 
different names by all experts in criminal sociology. 

These ulterior distinctions are determined by the criteria of 
fact which follow. First of all in the mass of habitual delinquents 
there are presented those who are affected with an obvious and 
clinical form of mental alienation from which proceeds their 
criminal activity. In the second place, among the habitual de- 
linquents who are not mentally affected, little as one may have 
visited the prisons and studied delinquents from the sociological 
standpoint, one finds a class of individuals physically and morally 
ill-favored from birth, who five in crime by reason of a congenital 
necessity of organic and psychic adaptation, and who are closer 
to insanity than to normal reason. This category is distinguished 
from another class of individuals who also live in crime and by 
crime owing to the predominant influence of the social environ- 
ment in which they were born and have grown up, — an influ- 
ence always found together with a wretched organic and psychic 
constitution. These individuals, however, once having reached 
the state of chronic crime, are incorrigible and degenerate like the 
•other habitual criminals; but, before the descent from the first 



§ 93] NATURAL CLASSIFICATION OF CRIMINALS 139 

crime to the depths, they could easily have been saved by pre- 
ventive institutions and by a medium less profoundly vicious. 

Moreover, in the class of occasional delinquents a special 
category is distinguished, less by different characteristics than by 
the typical exaggeration of its organic and psychic characteristics 
hence, almost exclusively by differences in degree — greater or 
less. In all of these individuals it is rather the impulsion of occa- 
sion than innate tendency which determines the crime. With 
the majority the determining occasion is a quite common, or, at 
least, a not too exceptional stimulus, — but for some, on the con- 
trary, the stimulus is an outburst of extraordinary passion, a 
psychological tempest which of itself can carry them to the point 
of crime. Some of these individuals are normal men; others who, 
so to speak, complete the circle are in a class, as Delbruck, and 
Baer 1 have said, which is closely related to that of the criminal 
insane, if not with a permanent form of derangement at least with 
a lack of psychic equilibrium, which, at first more or less latent, 
finally breaks out in a criminal attempt. 

The whole mass of delinquents classify themselves into five 
categories which as early as 1880 I designated as follows: Crim- 
inal-insane — criminal-born — habitual criminals or criminals by 
acquired habit — chance criminals (" d'occasion ") — criminals by 
passion. 2 

§ 93. The Criminal Insane. 

As I have already said, criminal anthropology will not have 
reached its definite phase until it shall advance by biological, 
psychological, and statistical biographies in each of these cate- 
gories, giving to each in a qualitative and quantitative way 
psychological characteristics with a greater precision than now 

1 Baer, "Le prigioni ed i sistemi penitenziari," reviewed by Roggero in the 
R. C, pp. 346 el seq. 

2 The term criminal-born (" delinquente nato") so much discussed and now 
accepted in ordinary language since it responds to constant observations of daily 
life even by those who are strangers to anthropological science, was first given by 
me in 1880, "Diritto penale ed anthropologia criminale," A. P., I, 474, for the 
following consideration: "There is not much precision in the term 'habitual 
criminal' as indicating the type of man who because of a bad physical and psychic 
organization, is born, lives, and dies delinquent: in reality he is such from his first 
delict (often committed in infancy), that is, from a time when there cannot yet be 
any question of the habit of crime. It would be more accurate to call him an in- 
corrigible delinquent or a born-delinquent, thus indicating a condition which is 
established with the first misdeed, when the culprit shows those anthropological 
characteristics which make of him a separate type." The term "criminal-born" 
has indeed been fortunate. 



140 DATA OF CRIMINAL ANTHROPOLOGY [§ 93 

obtains, since the present observers give characteristics for a 
whole mass of delinquents who are distinguished only by the legal 
form of the crime committed and not according to their bio-social 
type as well. In the works of Lombroso, Marro, and others and 
oven in my "Omicidio" to a considerable extent, the character- 
istics are indicated either for the total or else according to the 
legal categories of delinquents (murderers, thieves, forgers, etc.), 
in each of which categories there are born-criminals, habitual 
criminals, occasional or chance criminals, and insane criminals. 
It follows that there are either partial disagreements between 
observers, or at least a kind of average in the characteristics of 
each anthropological class of criminals. Now, in consequence of 
the studies that have been made and especially since my studies 
on hundreds of delinquents, ordinary madmen, and normal per- 
sons, we are able to point out here the general lines which dis- 
tinguish these five anthropological classes of delinquents. First, 
it is evident that in a classification of delinquents which does not 
limit itself exclusively to the technical field of criminal anthro- 
pology and which must afford a positive base for the inductions 
of criminal sociology, the category of the criminal insane is fully 
entitled to a place. There is no necessity to be long with the 
objection that Joly 1 has again recently made me, wherein he 
claims that the term — criminal-insane — is a contradiction of 
terms because the insane are not criminal as they lack moral 
responsibility. I shall make reply to this assertion, which is in- 
spired by the traditional spiritualism, in treating of social ac- 
countability 2 which applies even to the criminal insane. In the 
meantime, when speaking of insane persons who commit some of 
those acts which if committed by sane men would be called crimes, 
we shall consider the term in its objective sense which is not open 
to discussion. Nor should we halt on the objection made by 
Bianchi, among others, at the Criminal Anthropology Congress of 
Rome; 3 namely, that the criminal insane belong to psychiatry. 
The fact that psychiatry is concerned with them from the stand- 
point of psychopathology does not prevent criminal anthropology 
and criminal sociology from being occupied with them, either in 
every form of natural study of the criminal, or in indicat- 
ing measures concerning them in the interest of public safety. 

1 Joly, "he crime," p. 62. 

2 See Chap. Ill, post. 

3 A. C. A. C, 137. 



§ 93] NATURAL CLASSIFICATION OF CRIMINALS 141 

Among the criminal insane there is a whole variety, recognized 
since the studies of Lombroso l and since the quasi-unanimity 
of the Italian psychiatrists shown at the Phreniatrical Con- 
gress of Sienna, 2 which is not distinguishable from that of real 
born-criminals. These are the morally insane afflicted with 
the hitherto little-defined phrenopathic form to which science 
has given so many names, from "moral imbecility," used by 
Pritchard, to "reasoning insanity," employed by Verga. This 
mental infirmity, which has been recently studied, especially in 
the works of Mendel, Degrand du Saulle, Maudsley, Krafft- 
Ebing, Savage Hugues, Hollander, Bonfigli, Tamburini and Sep- 
pilli, Bonnecchiato, G. B. Verga, Salemi, Pace, Bleuler, Barr, 
Waggoner, and others, consists in the last analysis in the ab- 
sence or atrophy of the moral sense (which I prefer to call the 
social sense of what is permitted or forbidden). It is most often 
congenital but sometimes acquired. It coexists with apparent in- 
tegrity of logical reasoning and presents the fundamental psycho- 
logical condition of the born-criminal. This is an observation of 
the greatest importance in avoiding the easy misapprehensions into 
which certain critics of the positive school have fallen. In failing 
to note the absolute difference between the morally insane and 
ordinary madmen they have revolted against a pretended "identi- 
fication between criminals and madmen" which has never had any 
place in the inductions of criminal anthropology. Aside from 
morally insane persons who are indeed rare and who, as Lombroso 
and Krafft-Ebing remark, are more often sent to prison as de- 
linquents than to special houses as patients, there is a whole 
phalanx of unfortunates who are afflicted with a common and more 
or less apparent form of mental infirmity. In this pathological 
state they commit crimes sometimes atrocious in the cases for 
instance of idiocy, the mania of persecution, violent mania, epi- 
lepsy, or in attempts against property and morals; also in cases 
of general paralysis, epilepsy, and imbecility. A general descrip- 
tion of these numerous and very different kinds of insane cannot 
be given here because their organic and especially psycho-patho- 
logical characteristics are not only at the same time identical and 

1 Lombroso, " Pazzia morale e delinquente nato," A. P., vol. I (1884); 
"L'uomo delinquente" 4th ed., I, pp. 584 et seq. 

2 "Atti del quinto congresso freniatrico" (Milan, 1887), pp. 64, 223 et seq. 
See also the critical study of Tanzi, "Pazzi morali e delinquent! nati," R. S. P. 
(1884), and Tamburini, "Contribution a l'etude de la delinquence congenitale et 
de la folie morale," A. C. A. C. (Rome, 1887), p. 431. 



142 DATA OF CRIMINAL ANTHROPOLOGY [§ 94 

opposed to those of non-insane criminals, but also, and especi- 
ally, because these characteristics often vary with the different 
forms of mental malady and hence, as Lombroso also thinks, 1 
they cannot be gathered into a single type as can be done for the 
other categories of delinquents. 2 

§ 94. The Mattoide and Semi-insane Categories. 

Besides the really insane, who are, as I have pointed out and 
been confirmed in by others, only an exaggeration of the born 
criminal type, 3 this category also embraces the delinquents who 
are neither completely sane nor insane and belong to what Mauds- 
ley called the "intermediate zone." Lombroso denotes them 
with the term "mattoides" which is now part of ordinary language 
since it expresses in a popular untechnical form an indisputable 
fact. It is really a mere prejudice to believe that there are found 
in nature the precise distinctions to which human language is 
forced to resort and that, for instance, in the present case there 
is a clean-cut difference between the sane and the insane. No, 
there is a shading of tints where we pass from one to the other by 
transitions which are difficult of determination. 4 Types of these 
half-insane delinquents are afforded us by those who finish their 
existence with a crime, often political in character or appearance. 
Their lives have been full of extravagances which are often char- 
acteristically expressed in a mania for writing and publishing a 
flood of pamphlets, wherein, in spite of only the most rudimentary 
education, they treat of the highest topics. Such are the Lazza- 
rettis, the Magiones, the Passanantes, the Guiteaus, the Macleans, 
etc. It is the half-insane who commit the most atrocious and re- 
pelling crimes of bloodshed with a coolness which proceeds from 
their pathological organization, and without any apparent motive or 
without a motive proportionate to its effect. And yet the classical 
criminalists find in them the maximum of "moral liberty" and of 
responsibility when they speak of homicides committed "with- 
out cause" or simply through "brutal perversity" or through a 

1 "L'Uomo delinquente," 5th ed., II, 480. 

2 For an analytical description of the criminal-insane, see Lombroso, "L'uomo 
delinquente," 5th ed. II, 266 el seq.; and for insane murderers, see my "Omicidio " 
(the psycho-pathology of homicide). 

3 Lombroso, Preface to "Duecento criminali e prostitute," by Ottolenghi and 
Rossi (Turin, 1898), p. VI. 

4 Cullerre, "Les frontieres de la folie" (Paris, 1888); Parant, "La raison dans 
la folie" (Paris, 1888); Soury, "fitude sur la folie hereditaire" (Paris, 1886). 



§ 94] NATURAL CLASSIFICATION OF CRIMINALS 143 

sort of "sanguinary erotism" or through "hatred for humanity." 
We find other examples among those whom alienists call necro- 
philo-maniacs who are equally impelled to murder or rape — like 
that Sergeant Bertrand who dug up bodies to violate them, — or 
Verzeni who violated women after having strangled them, — 
or Menesclou who was sentenced to death at Paris for hacking 
to pieces a little girl of seven after he had violated her. 1 

Finally, a large contingent is furnished to this category by those 
who are afflicted with hereditary insanity and epilepsy, under 
forms of these maladies which are much more frequent than is 
generally believed, and to which the latest results of psychopathol- 
ogy reduce the greater part of those strange forms of alienation 
that were formerly called temporary insanity and in which various 
kinds of monomania are observed. One of these latter, "mis- 
deisme," deserves mention. It is the kind of homicide with the 
massacre of several persons, committed generally by soldiers on 
their comrades or on their superiors, without any apparent serious 
motive. This is certainly an expression of epilepsy among indi- 
viduals whom a more careful and a more rigorous examination be- 
fore enlistment would have kept out of the service, and would 
avoid the frequent repetition of these tragedies, which it is absurd, 
as well as useless, to persist in combating with the death penalty. 
In this connection we should recall that Lombroso, although at 
first identifying moral insanity with congenital delinquency, 
finally traced both to epilepsy, making, as I had already declared, 
the epileptoid constitution the common base of all forms of de- 
linquency. Certainly the positive proofs advanced by him are so 
numerous and agree so well that after the first objections, which 
were inevitable and which were made also to the assimilation of 
the morally insane with the born criminal, this view will finally be 
definitely conceded, or, at least essentially. Already in practice it 
seems to explain certain strange and savage crimes wherein one 
very often finds traces of the epileptic temperament of which 
formerly one never thought except in the most pronounced and 
rarest cases. 2 

1 Viazzi, "Sur reati sessuali" (Turin, 1896), Cap. XII; Krafit-Ebing, "Psy- 
copathia sexualis" (Stuttgart, 1886), and all the rich bibliography from Westphal 
to Raffalovich, on sexual perversion, in Ferri, "L'Omicidio," pp. 624, 662. 

2 Lombroso, "Uomo delinquente," 4th ed., I, 631 et seg.; I, 116. See also 
Frigerio, "De 1'epilepsie et de la folie morale dans les prisons et les asiles d'alienes," 
A. C. A. C. (Rome, 1887), pp. 212 et seg.; Tonnini, "Le epilessie" (Turin, 1886); 
Sighicelli et Tamhoni, "Pazzia morale ed epilessia," R. S. V. (1888); Venturi, 



144 DATA OF CRIMINAL ANTHROPOLOGY [§95 

§ 95. The Born-Criminal Category. 

Finally comes the category of the criminal-born which is, 
properly-speaking, made up of those in whom there is observed 
clearly the special marks revealed by criminal anthropology. 
These are the types of men, either savage and brutal or polished 
and idle, who are unable to distinguish murder, robbery, and 
crime in general from honest industry. They are "delinquents 
just as others are good workmen"; l and have ideas and sentiments 
on crime and punishment entirely opposed to those which legisla- 
tors and criminologists think they have. With these delinquents, 
a penalty suffered has, as Romagnosi 2 said, less effect than a 
penalty which threatens. It has, in fact, none at all because they 
consider prison as a refuge where food is assured them even in 
winter without need of much labor and more often with enforced 
idleness; or, at the most, as a risk inseparable from their criminal 
industry, just like any other risk, such as falling from a false work 
which is incurred by a mason or the risks incurred by railway 
servants. 

These with the habitual delinquents constitute, under the two 
characteristic and opposed types of murderers and thieves, the 
phalanx of those who, scarcely released from prison, again commit 
crime and are eternal pensioners of all the houses of detention. 
Well known to police and the courts, they count their convictions 
for trifling offenses by the dozen or more. Against these, the 
legislator, closing his eyes to daily experience, persists in the use- 
less and costly fight between penalties which cause no fear and 
delicts ceaselessly repeated. 3 The idea of a born-criminal (who is 
criminal by the inexorable tyranny of congenital tendencies) is 
certainly contrary to common opinion, which insists that every 
man should impute his conduct to his free will or at most to a 
defective and badly directed training rather than to the ordinary 
composition of his organic and physical constitution. It thus 
lends itself to facile and oratorical contradictions. Further, the 

"La epilessia vasomotoria," A. P. (1889), p. 28; Baker, "Some Remarks on the 
Relation of Epilepsy and Crime," J. M. S. (July, 1888); Viri, "Les epilepsies et 
les epileptiques" (Paris, 1890); Ottolengki, "Epilessie psichiche" (Turin, 1893); 
Eoncoroni, "Trattato clinico della epilessia" (Milan, 1894); Peixoto, "Epilepsia 
e crime." 

1 Fregier, "Les classes dangereuses," p. 175. 

2 Romagnosi, "Genesi del diritto penale," §1498. 

3 Wayland, "I delinquenti incorreggibili," in the R. C. (1888), p. 558; Sich- 
art, "Criminels incorrigibles," in "Bull. comm. penit. intern." (April, 1889). 



§ 96] NATURAL CLASSIFICATION OF CRIMINALS 145 

incompetents who visit the prisons are unable either to find or 
see these types of delinquents; and this is partly, as l'Abbe 
Crozes (who observed and knew the prison world to the very bot- 
tom) has yery well shown. He says: "these incorrigibles are 
ordinarily inoffensive and often useful prisoners, and have only 
the best relations with the keepers and directors, who say of them: 
'He is a good prisoner who listens to reason, and would not harm 
a fly.' Prison life is no suffering for them: they are there 'like 
the painter in his studio where he thinks of new master-pieces." 1 
But this same common opinion when it is not preoccupied with the 
dreadful and imaginary consequences of the irresponsibility for 
crime committed under such conditions, recognizes, at least in the 
evident cases, that there are men born for crime whose anti- 
human conduct is the inevitable effect of an indefinite series of 
hereditary influences which accumulate in the course of genera- 
tions. This is proven by the success which has attended in 
ordinary language my expression, the born-criminal. Science, 
moreover, to which in the end the common opinion surrenders, 
has gathered such convincing proofs of this idea; practical life 
has so confirmed it with the general testimony of prison directors 
and prison doctors, that the fact will surely be impressed upon 
legislators, unless they wish to imitate the hen which after hatch- 
ing ducklings undertook to correct them of their innate desire to 
swim by pecking them every time they came out of the water, — 
a process_ which did not prevent their immediate return in spite 
of her. ! 

jtt § 96. The Habitual Delinquent Category. 

In thejhird place is the category of delinquents whom, as the 
result of studies principally made in the prisons, I have called 
habitual dehnquents or delinquents by acquired habit. These 
individuals show in an indistinct way, if at all, the anthropological 
marks of the born-criminal. The first crime is committed very 
often at a tender age and almost always against property and less 
through innate tendencies than through the moral weakness 
peculiar to them, to which is added the impulsion of circumstances 
and a corrupt environment which constitute a true center of 
criminal infection. Often, also, as Joly 2 observes, they are en- 
couraged by the impunity following their first faults and persist 

1 Moreau, "Souvenirs de la petite et de la grande Roquette" (Paris, 1884), 
II, 440. 

2 Joly, "Le crime," Cap. IV. 



146 DATA OF CRIMINAL ANTHROPOLOGY [§ 97 

in crime, which then becomes a chronic habit and a real profes- 
sion. This comes from the fact that detention in common cor- 
rupts them morally and physically, confinement in cells stupifies 
them, alcoholism brutalizes them, and society, abandoning them 
after as before their liberation, to wretchedness, idleness, and 
temptation, does not help them in their struggle to re-enter the 
conditions of honest life. "Society may even have forced them 
to fall back into crime by certain institutions such as segrega- 
tion, admonition, and surveillance, which ought to be preventive 
but which, on the contrary, are new causes of crime." Adults and 
even youths are sentenced ten, twenty, and thirty times to short 
terms, generally for theft or vagabondage, and this simply be- 
cause after their first crime, admonition and surveillance together 
with the corruption of the so-called houses of correction and 
prisons deprived them of every means of honestly gaining their 
living. Judges and lawyers know it well. They know that with 
these badly combined social mechanisms Thomas Moore was 
right in saying "What are you doing but making thieves in order 
to have the pleasure of putting them in prison?" It is precisely 
the thieves that in my opinion form, together with other similar 
delinquents against property, the principal contingent of delin- 
quents by acquired habit, because trained or forced to begging 
and to theft from their tender infancy by their families or by other 
persons who, especially in large cities, become promoters and 
professors of crime, they do not know honest toil and are the 
"bedouins" of the great cities." 

§ 97. Precocity and recidivity ; — Traits of the Habitual Criminal. 

Precocity and recidivity in addition to the anthropological 
indications are the sociological traits that I have indicated in 
habitual criminals as in born-criminals but for different reasons. 1 
I am reserving the demonstration 2 of how the influence of age on the 
responsibility of the delinquent is regulated by the positive school 
quite differently from the classical principles. 3 For the moment 
I am content to indicate that this display of crime in the youth 

1 Ferri, "I nuovi orizzonti," 2d ed. (1884), p. 241; Filippi, "Delia precocita 
recidiva nella delinquenza" (Florence, 1884); Fliche, "Comment on devient cri- 
minel"; "Etude sur la precocite des malfaiteurs" (Paris, 1886). See also Joly 
"La France criminelle" (Paris, 1889), Ch. VI; Ferriani, "Minorenni delinquent" 
(Milan, 1895); Morrison, "Juvenile Offenders" (London, 1896); Katsch, "Jug- 
endliches Verbrecherthum " (Forbach, 1896); Eeim, "Die jiingsten und die alt- 
e3ten Verbrecher" (Berlin, 1897). 

3 See Chap. Ill, post. » See Chap. III. 



§ 97] NATURAL CLASSIFICATION OF CRIMINALS 147 

of individuals belonging to these two categories is common to all 
countries. This is consistently shown by the figures, by statistics 
in a constant progression. 1 Jurists and legislators of the classical 
school have been forced to recognize and consider it during the last 
two or three years with an unaccustomed activity. And natu- 
rally they have also been compelled to seek scientific criteria and 
practical measures from the positive school in order to most 
quickly combat the evil. These measures look especially to the 
prevention of contact between young delinquents and hardened 
criminals, — a matter which is of vast importance and which 
positivist writers have so vainly proven. Statistics show a greater 
number of precocious criminals in the criminal forms where the 
congenital tendency prevails (assassination and homicide, viola- 
tion, arson, armed robbery, qualified thefts) or where there is 
acquired habit (simple thefts, begging, vagabondage). For the 
latter group the measures adopted will show all the efficacy which 
it is possible for them to have with a penal and penitentiary organ- 
ization still impregnated with traditionalism, in the midst of a 
social organization wherein are continued the economic and moral 
conditions that make for habitual delinquency. Side by side 
with the specific mark of precocity in born-criminals and in habit- 
ual criminals, another mark is found; recidivity. "The great 
number of recidivists, tried annually, proves that thieves practice 
their industry as a regular profession. Certainly the thief who 
has tasted prison life will return. The boasted model prison 
where he is guarded, clothed, fed, and warmed at the expense of 
the State is so far from reforming him that, scarcely liberated, he 
returns to his trade. The police arrest him and turn him over 
to the law. After a shorter or longer time the law turns him over 
to society, from which the police take him again and so on." 2 
"There are very few cases where a man, woman, or child having 
once become a thief ceases to be such. The exceptions are so 
rare that they do not deserve citation. Whatever be the reasons, 
the fact is that a thief is seldom reformed, I was about to say 
never." 3 "When we succeed in changing an old thief into an 
honest workman we shall also be able to change an old fox into a 

1 See Bosco, "La delinquenza in varii stati d'Europa," which is the latest and 
most complete study of comparative criminal statistics, in the B. I. I. S., vol. VIII 
(Rome, 1903). 

2 "The London Police," in the "Quarterly Review" (1871). 

3 Wakefield, Director of Newgate Prison, cited by Girardin, "Du droit de 
punir" (Paris, 1871). 



148 



DATA OF CRIMINAL ANTHROPOLOGY 



[§97 



domestic dog." x To these observations of practical men, and 
those which I have cited earlier, must be added the distinction we 
have made between the incorrigibles by birth and those who- 
become such through the cooperation of the social or prison en- 
vironment. Recidivity among the former is unfortunately 
unavoidable. Among the latter it can be prevented to a great 
degree by ameliorations in city and prison. In any event, statis- 
tics give str ivin g data on habitual recidivity. 

In the work of Yvernes 2 we find in the total of recidivists: 



Recidivist 
per 100 


England 

(Convicts) 

1871 


Switzerland 

(Thefts) 

1871 


France 

(Accused and 

arraigned) 

1826-1874 


Italy 

(Assizes and 

tribunals) 

1870 


Once 

Twice 

Thrice 


38 
18 

a 


54 
28 
18 


45 
20 
35 


60 
30 
10 



In the prison statistics of Prussia, reported by Starke, 3 we find 
in the total of recidivists, the following percentage for the years 
1877-1878, 1881-1882: 



Recidivists 


Times 


Percentage 


1 


17.2 


2 


16.4 


3 


15.8 


4 


12.7 


5 


9.8 


6 or more 


28.1 



At the Penitentiary Congress of Stockholm it was shown that 
in Scotland 1.6 per cent, of the convicts were recidivists more than 
twenty times, and 0.3 per cent, more than fifty times; and among 
women, well known to be more obstinate in recidivity, 15.4 per 
cent, were recidivists more than twenty times and 5.8 per cent. 

1 Thomson, "The Psychology of Criminals," p. 27. 

2 YvernSs, "La recidive en Europe" (Paris, 1874). 

1 Starke, "Verbrechen und Verbrecher in Preussen," p. 229. 



§ 97] NATURAL CLASSIFICATION OF CRIMINALS 149 

more than sixty times. 1 For the Scotch prisons during ten years 
the following proportions 2 of the total number of convicts are 
given: 



Recidivists 


Times 


Percentage 


1 


15.7 


2 to 3 


12.9 


4 to 5 


5.9 


6 to 10 


5.6 


10 to 20 


4.6 


20 to 50 


3.5 


more than SO 


1.2 


Total 


49.4 



At the Congress of Social Sciences, held at Liverpool in 1876, 
Chaplain Nugent said that in 1874 more than 4,107 women were 
recidivists four or more times "and that a great number of them 
had been declared incorrigible, having been in prison twenty, 
thirty, forty, or fifty times. One of them had been in prison 
more than 130 times." 3 

From my study of 346 convicts at Pesaro and 353 prisoners at 
Castelfranco, I have compiled the following data: 



Recidivists 


Convicts 


Times 


at Pesako 


AT CASTELFEANCO 


Percentage 


Percentage 


1 


81.2 


26.0 


2 


12.5 


16.5 


3 


3.1 


14.6 


4 


3.1 


10.8 


5 


0.8 


6.6 


6 


0.8 


5.2 


7 


1.6 


7.1 


8 


1.6 


2.8 


9 


1.6 


2.8 


10 


1.6 


2.3 


11 


1.6 


0.9 


12 


1.6 


0.5 


13 


1.6 


0.9 


14 


1.6 


1.4 


15 


1.6 


0.9 


20 


1.6 


0.5 


Total of recidivists 


128 


212 



i C. R. C. (Stockholm, 1879), II, 142. 

2 Oettingen, "Die Moralstatistik," 2d ed. (Erlangen, 1874), p. 448. 

3 Nugent, "Rapporto al congreso di Liverpool," in R. C, VII, p. 42. 



150 DATA OF CEIMINAL ANTHROPOLOGY [§ 98 

Although these figures are more exact than those of general 
statistics because they are the result of individual researches, 
they still fall short of the truth. In any event, they throw light 
on chronic recidivity which is naturally less for the delicts pun- 
ished with long terms (because of the imprisonment itself) . They 
show it to be a significant symptom of both individual and social 
pathology in the two classes of born delinquents and delinquents 
by acquired habit. 

§ 98. Two Objections to Precocity as a Mark of the Categories of Born 
and Habitual Criminals. 

Lombroso x has made two objections in connection with these 
two characteristics which I have attributed to born delinquents 
and delinquents by acquired habit, and reached the conclusion 
that the absence of precocity and of recidivity is not peculiar to 
occasional (chance) delinquents. The first objection to my figures 
rests on the ground that I " should have given not only the most 
but also the less serious congenital forms, adding the delinquents 
by acquired habit to the born delinquents. Now, in infancy the 
acquisition of habit cannot be of long standing; and in any event, 
if one wished to adhere strictly to the statistical formulae of reci- 
divity and precocity, very slight delicts such as pocket-picking, 
and begging would have to be reckoned among those of the born- 
criminals." 2 The second is that the study of Marro on the differ- 
ent kinds of offenders, " when well studied, grouped, and compared 
from the standpoint of recidivity and precocity immediately bring 
out the fact that the most trivial delicts (idleness, petty assaults, 
pocket-picking, and theft) furnish the maximum of recidivity and 
precocity, while vice versa the maximum of great crimes (murder, 
swindling, rape) coincides with the minimum of recidivists and 
precocity." 3 These objections by Lombroso are based solely 
upon one mistake into which I also fell when I began my anthro- 
pological studies on the convicts at Pesaro and on the prisoners 
at Castelfranco. In the beginning I had considered the galley 
convicts at Pesaro as born-criminals and the prisoners at Castel- 
franco as occasional delinquents, taking the gravity of the crime 
as the test of congenital or occasional delinquency, and, hence, 
considering as born-criminals those who had been sentenced for 
the gravest crimes (murder, manslaughter, or rape) and as occa- 

1 "L'uomo delinquente," 5th ed., vol. II, p. 487. 2 Ibid., p. 487. 

3 Ibid., p. 489. 



§ 99] NATURAL CLASSIFICATION OF CRIMINALS 151 

sional offenders those who had been convicted of lesser offenses 
(blows, pocket-picking, theft, or vagabondage). An observation 
by Regalia 1 after my studies were communicated to him brought 
the error to my attention and showed that the gravity of the of- 
fense is not the exclusive and complete criterion of the different 
classes of delinquents. In fact, as Garofalo also observes, if as 
a general rule those who commit the most odious and savage 
crimes, particularly when they are precocious offenders, are born- 
criminals, it does not on that account follow that the authors of 
trivial offenses are only occasional criminals. Thus theft, which 
is so frequent, may be committed either by occasional delinquents 
(who remain such or become habitual according to the conditions 
of environment) or by true born-criminals. Hence, the objection 
advanced by Lombroso, that precocity is observed more often in 
slight than in serious offenses (as I myself have observed) is not 
equivalent to saying that precocity is observed more frequently 
among occasional than among born-criminals. Many individuals 
begin a life of theft and vagabondage early simply because they are 
born thieves or vagabonds (neurasthenic) or else because their 
parents force them to it and they then become delinquents by 
acquired habit. Nor is it true to say, as Lombroso says, that in 
infancy the acquisition of the habit cannot be of long standing; 
since every one knows that on the contrary, abandoned children 
are forced to theft and begging when mere babies and that some 
individuals count their convictions by the dozen before they have 
reached even their twentieth year. 

§ 99. Objection to Recidivity as a Mark of the Categories of 
Born and Habitual Criminals. 

As to recidivity, of which the causes are in part the same and 
in part different from those of precocity, Lombroso admitted what 
I maintained, that the gravest crimes, involving longer penalties, 
must necessarily show lesser recidivity. But it is one thing to 
compare the precocity and recidivity of different kinds of crimes 
among themselves, for example, observing that thieves are more 
precocious than murderers, and quite another to say as I have 
said, that aside from those guilty of petty assaults (which are 
frequently among minors homicide in the germ), the precocity 
is most frequently observed in the crime of a congenital tendency 
(murder, rape and robbery) or of habit (thefts, begging, vaga- 
1 A. P. (1881), p. 475. 



152 DATA OF CRIMINAL ANTHROPOLOGY [§ 100 

bondage). That thieves may be a little more or less precocious 
than murderers does not contradict the fact that of the two hun- 
dred and one crimes of the Penal Code only those which I have 
considered peculiar to congenital delinquency are more frequently 
committed by minors. This confirms the assertion that the 
crimes generally committed by occasional delinquents x are not 
committed at a precocious age and do not supply many recidi- 
vists, quite the reverse from what is seen in the forms of natural 
delicts, which are generally committed by born-criminals and 
habitual criminals. 

§ 100. The Criminal through Passion Category. 

In addition to the categories of which we have just spoken 
there remain the last two: criminals through passion and crim- 
inals by occasion (chance criminals) . Criminals through excess of 
passion ("delinquenti per impeto di passione"), who form a more 
distinct variety of occasional criminals, show certain character- 
istics which easily distinguish them. According to Lombroso, 2 
who even in his second edition supplementing Despine 3 and Bit- 
tenger, 4 gave a really complete list, we are able to say first of all 
that these criminals who show especially the type of "irresistible 
impulse" 6 commit crimes against the person and are quite rare. 
Thus, of seventy-one criminals through passion studied by Lom- 
broso, 6 sixty-nine were guilty of either homicide or assault; six 
had been convicted of robbery; three of arson and one of rape. 
As to their number, Lombroso, like Bittinger and Guillaume, 7 as- 
serted that criminals through passion number five per cent, of the 
total. This figure is certainly exaggerated. In the first place, 

i Wounds and voluntary blows; resistance, insult, violence against public 
officers; injury to immoveables; defamations and insults; arbitrary exercise 
of rights; refusal of service legally due; delicts of the press; embezzlement, 
bribery, embracery, abuse of authority by public officials; false witness; violation 
of domicile; slander; attempt at personal liberty; exposition, substitution, etc. 
of infants; bankruptcy; duel; abortion; adultery; involuntary homicide; invol- 
untary woundings; illegal practice of medicine and pharmacy; rural delicts, etc. 

2 " L'uomo delinquente," 5th ed., II, pp. 204 et seq. 

3 Despine, "Psychologie naturelle," I, 278, II, 215 et seq. 

4 Bittinger, "Crimes of Passion" (London, 1872). 

5 This term expresses inexactly certain real facts and the term has been sin- 
gularly abused, but is it proper to entirely banish it from criminal law as the new 
code has done? See also Ferri, "L'article 46 codice penale nelle corti d'assise," 
in the volume "Difese penale e studi di giurisprudenza" (Turin, 1899), p. 380. 

6 Lombroso, "L'uomo delinquente," 5th ed., II, p. 221. 

' Guillaume, "Rapporto al congresso penitenziario di Londra," in Beltrani, 
"Stato attuale della riforma penitenzionaria " (Rome, 1874), p. 321. 



§ 100] NATURAL CLASSIFICATION OF CRIMINALS 153 

Guillaume says that crimes committed through passion furnish 
five per cent, not of convicts in general but of persons convicted 
through correctional channels. Bittinger makes a general com- 
parison between the crimes through passion and those committed 
on reflection, which is seemingly very different from Lombroso's 
comparison of delinquents through passion with habitual delin- 
quents. In fact, we know that real delinquents through an access 
of passion are for the most part homicidal. When we observe 
that the total number of murders, including manslaughter, in 
Italy is scarcely four per cent, of the whole number of convicts 
of every kind, and in France 0.3 per cent., we see clearly that de- 
linquents through passion cannot constitute five per cent, of the 
total. In the type which is peculiar to them, they scarcely furnish 
five per cent, of the sanguinary crime. In fact, this correction 
was adopted by Lombroso in his fifth edition. 1 These are the 
individuals whose lives have previously been blameless — men of a 
sanguine or nervous temperament with exaggerated sensibility, 
quite the reverse of the born and habitual criminals. They are 
sometimes of a temperament closely related to that of the insane 
or epileptic, of which their criminal rage may be only a disguised 
manifestation. Most often (especially in the case of women) they 
commit the crime in their youth under the impulse of uncontrolled 
passion, like anger, jealousy, or shame. Their emotion is violent 
before, during, and after the crime, which is not committed secretly 
or stealthily but openly and often by ill-chosen means, the first 
which -come to hand. There are sometimes, however, criminals 
through passion who premeditate and cunningly execute a crime 
either because of a less impulsive temperament or, in the cases of 
endemic crime, under the influence of prejudices and public opin- 
ion. That is why in criminal psychology premeditation has no 
absolute value in distinguishing the born-criminal from the crim- 
inal through passion; for premeditation depends more upon in- 
dividual temperament than upon anything else, and is found 
equally in crimes committed by all the anthropological types. 2 

1 Lombroso, "L'uomo delinquente," 5th ed., pp. 204 et seq. 

2 Ferri, " Provocazione e premeditazione," in the volume "Difese penale e 
studi di giurisprudenza," p. 436. In that monograph, and in the second edition of 
this book (1884), I established the distinction between social and anti-social pas- 
sions, both as a positive criterion of responsibility as we shall see in Chap. Ill, and 
as the psychological characteristic of the criminal through passion. Lombroso and 
I have always spoken of the criminal moved by a social passion (love, honor, etc.) 
— a point on which Puglia insists, "Intorno ai delinquenti per passione" in the 
Riv. career. (May, 1897), calling them "delinquents by irresistible moral impul- 



154 DATA OF CRIMINAL ANTHROPOLOGY [§ 101 

Among the other characteristics peculiar to criminals through 
passion is the fact that the determinant psychological cause is 
proportionate to the crime and that the crime (I must add) is its 
own object and not a means to the commission of other crimes. 
They do not hesitate to avow their misdeed, and their excessive 
repentance may lead to suicide. In fact many commit suicide 
immediately or a short time after the criminal attack. If they 
are convicted (which rarely happens) they continue to show re- 
pentance and improve, or rather they are not corrupted in prison, 
thus affording a small number of obvious cases from which some 
observers believe themselves warranted in drawing the conclusion 
that the improvement of offenders is constant. On the contrary, 
however, improvement is unknown among born and habitual 
criminals. Criminals through passion, show few or none of the 
characteristics, such as I have given in studying the physiognomies 
of homicides. These are the distinctions of the criminal by access 
of passion. They are, however, less marked in countries where 
certain crimes against the person are endemic, such as homicide 
for revenge or on a point of honor in Corsica and Sardinia, or the 
political homicides of a few years ago in Russia and Ireland. 

§ 101. The Occasional Criminal Category. 

There is finally the category of occasional criminals (" delin- 
quent! d'occasione ") . These chance criminals have not received 
from nature an active tendency towards crime but have fallen into 
it, goaded by the temptation incident to their personal condition 
or physical and social environment and who do not repeat their 
offense if these temptations are removed. They commit crimes, 
therefore, which do not belong to natural delinquency, and even 
in the commission of crimes against the person or property they 
act under individual and social conditions entirely different from 
those in which such crimes are committed by born criminals and 
habitual delinquents. Assuredly, even in the chance criminal, 
a part of the causes which determine the crime belong to the an- 
thropological order; since, without the particular dispositions of 
the individual, the exterior impulsions would be insufficient. For 
example, in a period of hard times the whole population does not 

sion." See Puglia, "La distinzione dei delinquent! di Lombroso e il diritto 
repressive" in the "Anomalo" (March, 1897). See also Bonanno, "II delinquente 
per passione" (Turin 1896), p. 37; Zuccarelli, "I passionati del bene," S. C. (15 
August, 1894). 



§ 101] NATURAL CLASSIFICATION OF CRIMINALS 155 

devote itself to theft. One man prefers the sufferings of honest 
and undeserved poverty, another goes so far as to beg; and even 
among those who descend to crime, some are content with larceny, 
while others commit burglary or highway robbery. But since 
there are no absolute distinctions in nature, the fundamental 
difference between the chance criminal and the born-criminal 
consists always in this fact, that in the latter the external stimulus 
is secondary when compared to the internal criminal tendency 
which in itself has a centrifugal force impelling the individual to 
crime; while in the former is found rather a feebleness of resis- 
tance to external stimulus, which consequently becomes the prin- 
cipal determinant force. The incident which provokes the crime 
in the case of the born-criminal is simply the point of application 
of a preexisting instinct, so to speak. It is less an occasion than 
a pretext. With the occasional criminal it is, on the contrary, the 
real stimulus which vitalizes the latent criminal spark. In the 
born-criminal it is a fact which determines the discharge of a 
persistent distinctive force; in the chance criminal it is a fact 
which simultaneously causes the growth and explosion of a crim- 
inal instinct. For this reason Lombroso * calls occasional delin- 
quents, criminaloids ("criminaloidi") to indicate that their organic 
and psychic constitution presents abnormality, in lesser degree 
than is found in true criminals or born-criminals. The relation 
expressed is analogous to those shown by the words metal and 
metaloid or epileptic and epileptoid. Such a definition, however, 
destroys the criticisms that Lombroso himself made of the idea 
of the occasional criminal category when he said, as did Benedikt 
at the Congress of Rome and as Sergi 2 has later repeated, that 
"all criminals are born-criminals," and hence the true occasional 
criminal or the normal man, urged to crime by occasion alone, does 
not exist. For my part, in accord with Garofalo, even in the 
second edition of this work (1884), I have never expressed any such 
conception of the occasional criminal. But on the contrary I 
have always said, as Lombroso himself admits a little farther on, 
quoting my words, 3 that there is only a difference of degree and 
modality between the born and the occasional criminal, — a thing, 
moreover, which is true of all the categories of delinquents. Of 

1 "L'uomo delinquente," 5th ed., II, p. 507. 

2 Lombroso, "L'uomo delinquente," 5th ed., II, p. 204; II, p. 488; A. C. 
A. C. (Rome, 1887), p. 140; Sergi, "Le degenerazioni umane," p. 103. 

3 "L'uomo delinquente," 5th ed., vol. II, p. 537. 



156 DATA OF CRIMINAL ANTHROPOLOGY [§ 101 

the two conditions which psychologically determine crime — moral 
insensibility and lack of foresight ("improvidenza") — the crime 
of occasion is traceable to the latter, while congenital and habitual 
delinquency is principally traceable to the former. In the born- 
criminal it is lack of social feeling which prevents him from recoil- 
ing before crime. In the occasional criminal this social sense exists 
or is much less obtuse, and not being seconded by a sufficiently 
lively appreciation of the consequences, it yields to the exterior 
impulsion, without which it was strong enough and would have 
remained strong enough to hold the individual in the straight 
path. In every man, no matter how pure and honest he may be, 
the fugitive thought of a dishonest or criminal act occurs on certain 
seductive occasions. But in the honest man, because of his or- 
ganic and moral fiber, this tempting image which immediately 
awakens a vivid idea of the possible consequences is overcome by 
his strong psychic organization. With a man of less strength and 
less foresight it overpowers the resistence of a weak moral sense 
and finally conquers, because, as Victor Hugo says, "in the face 
of duty, doubt is defeat." 1 A criminal by passion is a man with 
sufficient strength to resist ordinary and mild temptations but 
without sufficient force to resist the psychological tempest which 
sometimes becomes so violent that no man, be he ever so strong, 
could resist it. The forms of occasional delinquency that we have 
enumerated contain the reason for their origin, in the accidental 
character which distinguishes them. Following Lombroso, 2 the 
general stimulants of age, sexuality, poverty, influence of the 
weather, of the moral environment, of alcoholism, of personal 
circumstances, and of imitation (of which Tarde has undoubtedly 
exaggerated the casual importance in social facts but showing 
fully the part which they play in human activity) 3 must be taken 

1 As an example, I recall the case of the alienist, Morel, who relates it himself. 
Crossing a bridge one day in Paris, he saw a workman who was leaning on the 
parapet and gazing over it; he felt a homicidal impulse traverse his brain like a 
flash of lightning but he took to his heels in order not to yield to the temptation 
to throw the man into the water. The case of a nurse of Von Humboldt is related 
by Esquirol, who seeing and touching the rosy flesh of a new born babe was seized 
with the temptation to kill it and ran to warn other persons in order to avoid a 
tragedy. We recall also the literary man of whom Briire de Boismont speaks in 
"Suicide'' (1865), p. 335, who "in looking at a painting at the Exposition was 
seized with such a desire to destroy it that he had scarcely time to withdraw in the 
greatest haste." For other instances see Ferri, "L'Omicidio, pp. 530, 531. 

2 Lombroso, "Delinquent d'occasione," A. P., II, 3; "Uomo delinquente," 
5th ed., p. 482 et seq. 

3 Tarde, "La psychologie en economie politique," R. P. (1881), p. 401; "Des 



§ 102] NATURAL CLASSIFICATION OF CRIMINALS 157 

into consideration. Thus Lombroso distinguishes two varieties of 
occasional criminals: on the one hand, the pseudo-criminals, i. e., 
normal men who commit involuntary crimes, political crimes, or 
misdeeds which imply no perversity and involve no damage to 
society, although the law considers them criminal; on the other 
hand, the criminaloids, who commit ordinary crimes but who are 
differentiated from ordinary criminals for the reasons above given. 

§ 102. Difference Between Categories One of Degree. 

Apropos of these anthropological categories, we would make 
a last general observation — one which meets certain objections 
frequently made by those syllogistic critics of criminal an- 
thropology who have never personally observed nor studied 
criminals. In the first place, the differences between these 
five classes of criminals are only differences of degree and mo- 
dality, both in their organic and psychic traits and in the con- 
currence of the physical and social environment. There is no 
essential difference between the groups of any natural classifica- 
tion. This is not only true of mineralogy, botany, zoology, or 
general anthropology, but of criminal anthropology as well. It 
does not take away either experimental solidity or practical im- 
portance from the natural classification. The same is true of 
the classifications of criminal anthropology. In natural history 
we pass by degrees and shades from the inorganic world to the 
organic (since even in minerals there is a minimum degree and a 
first form of life as is shown by the laws of crystallization), and 
biology is only an ulterior evolution of physics and chemistry. 1 
In the organic world we pass by degrees and shades from proteids 
to vegetation, then to animals and their species which become 
more diversified as they multiply. So, also, in criminal anthro- 
pology, we pass gradually from the insane criminal to the born- 
criminal passing over the morally insane and epileptic delinquents. 
From the born-criminal we pass to the occasional criminal meeting 

traits communs de la nature et de l'histoire," id. (1882), pp. 270 et seq.; "L'arche- 
ologie et la statistique," id. (1889), pp. 363 and 492, works collected and supple- 
mented in the volume "Les lois de l'imitation," 2d ed. (Paris, 1895). See also 
Morici, "L'imitazione nella vita sociale e nella affezione nervose" (Palermo, 1888). 

For criticism see Ferri, "La teoria sociologica del Tarde," S. P. (September, 
1895). 

1 Pilo, "La vita nei cristalli — Prime Linee di una futura biologia minerale, " 
R. F. S. (December, 1885); Dal Pozzo di Mombello, " L'evoluzione dalP inorganico 
all' organico," id. (December, 1886); Morselli, "Lezioni di antropologia generale" 
(Turin, 1889-1899). 



158 DATA OF CRIMINAL ANTHROPOLOGY [§ 103 

on the road the criminal by acquired habit who begins as an occa- 
sional wrongdoer and finally ends, through acquired degeneracy, 
in showing the organic characteristics and especially the psychic 
traits of the born-criminal. Finally, we pass from the occasional 
criminal to the criminal by passion who is of a more distinct 
variety, since, with his neurotic, hysterical, or epileptoid or mat- 
toid temperament, the criminal by passion often resembles or is 
partly merged in the insane criminal. 1 

§ 103. Application of Class Division of Criminals. 

Thus in actual everyday life, as in the study of every living 
being, intermediate types are found — and this is why the idea 
of species and variety is altogether relative. In examining crim- 
inals, we find, and in great number, types intermediate between 
the anthropological categories, it being always understood that 
the complete and distinct types are the least common. Thus it 
has rarely happened that the Courts of Justice have had to deal 
with an accused person who completely and clearly showed the 
characteristics of any anthropological type. The law and the judge 
require the medico-legal expert to describe the accused in mono- 
syllabic answers of yes and no when interrogated as to his sanity, 
believing that all living nature can be bound up in juridical syl- 
logisms. Very often, however, all that the expert can answer is 
that the accused is in a state between sanity and insanity or 
between insanity and congenital delinquency. Yet, this does 
not imply the impossibility of applying this classification in prac- 
tice to penal legislation. Such an application is the task of crim- 
inal sociology. 

A delinquent is already classified with precision when we are 
able to say that he stands midway between two determined 
categories. To say the one accused is placed between the insane 
criminal and the born-criminal, another between the insane 
criminal and the criminal by passion or between the occasional 
delinquent and the habitual delinquent, is to fix the anthropologi- 
cal type with as much safety as when a greater number of traits 
and circumstances of fact place him definitely in one of these 
anthropological categories. As to the objection that criminal 
anthropology cannot practically determine to what anthropolo- 

1 For this reason Bonono, "II delinquente per passione," p. 76, rightly distin- 
guishes two varieties of criminals by passion: those who resemble the insane or 
epileptoid criminal, and those who represent the real type. 



§ 104] NATURAL CLASSIFICATION OF CRIMINALS 159 

logical category the author of a given misdeed belongs (and this 
is one of the subjects discussed at the Congress of Paris under 
Garofalo's chairmanship), that can come only from a man who 
reasons from an abstract and nebulous image of the delinquent, an 
image which he draws in his own mind, exactly as to the classical 
criminalists and the codes. A personal examination of a delin- 
quent undertaken with sufficient attainments in anthropology 
and in criminal psychology always classifies him. This is some- 
times easy for the distinct types, for often a few symptomatic 
details of their attitude before, during, and after the crime, with- 
out the necessity of a direct personal examination, 1 will mark 
the class. Sometimes it is difficult because with intermediate 
types it is necessary to make a complete diagnostic examination 
of the organic, psychic, and social traits. In an examination for 
the anthropological classification of criminals while the organic 
marks alone suffice in the clear cases, as in certain types of born 
homicides, still, as a general rule, the most decisive diagnostic 
value lies in the psychological characteristics. These, however, 
as I have said in speaking of the criminal type, should never be 
separated from the organic characteristics, the data furnished by 
antecedents, nor the actual circumstances of the crime, when 
classifying a delinquent. This is true even when he is classified 
as insane. Hence, as Garofalo 2 says, while the classical criminal 
science knows only two terms: crime and punishment; criminal 
sociology knows three: crime, the criminal, and the appropriate 
means of social defense. I might therefore conclude that until 
now science, law, and although in lesser degree, practical justice 
have punished the crime in the delinquent, for the future we must 
judge the delinquent in the crime. 

§ 104. Numerical Proportions of the Five Categories of Criminals. 

The general lines being thus given for the five categories into 
which the criminal world is divisible, the question naturally arises : 
what are their respective numerical proportions? The question 

1 I proved this in my diagnosis of insanity in Caporali (the assailant of Crispi) 
from characteristic data reported in the papers. The diagnosis (rudimentary para- 
noia) was confirmed at the trial by the experts for the prosecution and defense. 
See Ferri, "Una diagnosia distanza," in the "Difese penale e studi di giurispru- 
denza," p. 453. 

2 Garofalo, "Lorsqu'un individu a et^ reconnu coupable, peut-on etablir par 
l'anthropologie criminelle la classe criminelle a Iaquelle il appartient?" in the 
"Actes du congres de Paris" (Lyons, 1890), pp. 73 and 353. See also Ferri, 
"Uno spiritista del diritto penale," A. P., pp. 145 et seq., 150 el seq. 



160 DATA OF CRIMINAL ANTHROPOLOGY [§ 105 

is not easily answered, because methodical researches in this di- 
rection are wanting and because there is no absolute separation 
between the different classes of delinquents. Hence one cannot 
give a sufficiently precise statistical or general answer. Content- 
ing ourselves for the present with an approximation, we may say, 
first of all, that the categories of criminal insane and criminals 
through passion are by far the least numerous and give a figure 
which, in spite of the uncertainty of the data on the subject, 
we may estimate as fluctuating between five and ten per cent, of 
the total criminality in general. It naturally varies for the dif- 
ferent species of crime. For the rest of the mass of delinquents 
some data which I have given shows that the two categories of 
born-criminals and delinquents by acquired habit should furnish 
about forty to fifty per cent. These figures are, I repeat, only 
approximate, because they vary with the kinds of crime. For 
example, among thieves, the proportion of born-criminals is much 
less than among murderers, robbers, or burglars. It would be 
still less for a series of individuals convicted of riot, petty assaults, 
or disorderly conduct. Finally, in this connection, we should 
remember that among the forms of habitual delinquency taken 
generally, there may be found some occasional delinquents, es- 
pecially in homicide and theft, and that the crimes which are 
ordinarily occasional may also be committed by born or by habit- 
ual criminals; thus riot and petty assault; — crimes which show 
the characteristics, although in lesser degree, of precocity and 
recidivity. 

§ 105. Other Classifications of Criminals. 

And now concluding the subject of criminal anthropology, 
there remains the indication of a fact of great scientific and 
practical importance. Since I developed this moral classifica- 
tion of criminals in 1880, in the "Archivo di psichiatria," l all 
who have studied criminality as a natural and social phenome- 
non have recognized the necessity of not only a simple classi- 
fication like the basic and no longer recent distinction between 
habitual and occasional delinquents (to which for no known 
reason the International Union of Penal Law exclusively adheres) 
but also of one which should at the same time be complex and 
contain more or less subdivisions, according to the different 
criteria adopted. Aside from Royce, Guyau, Siciliani, Tallack, 
1 A. P., (1880), I, 474. 



§ 105] NATURAL CLASSIFICATION OF CRIMINALS 161 

Carrau, Garofalo, Fouillee, Espinas, Reinach, Ten Kate and 
Pavlovski, Soury, Oettingen, Desportes, Du Cane, Zuccarelli, 
Acollas, Beaussire, Joly, Binswanger, Krohne, Proal, Olrik, 1 
and others who have resumed the distinction between habitual 
and occasional criminals, and aside from the great majority of 
positivists who have accepted my classification, there are other 
observers who have proposed different classifications. I shall 
not restate the long review of these given in my Italian edi- 
tions, but shall refer to only the principal ones. The authors 
of the others are Minzloff, Le Bon, Puglia, Tamassia, Porto, 
Lucas, Liszt, Medem, Saleilles, Fohring, Poletti, Badik, Krauss, 
Benedikt, Bianchi, Marro, De Bella, Topinard, Joly, Garofalo, 
Yvernes, Sergi, Foinitzki, Pelman, Bonfigli, Baviera, Salillas, 
Pelhzari, Severi, Riviere, Ziino and Perrier. 2 Lacassagne dis- 

1 Royce, "Deterioration and Race Education "(Boston, 1878), pp. 29 et seq.; 
Guyau, "La morale anglaise contemporaine" (Paris, 1879), p. 332; SicUiani, 
" Socialismo, Darwinismo e sociologia moderna" (Bologna, 1879); Tallack, "La 
recidive d'habitude en Angleterre," in the B. S. G. P. (December, 1879) ; id., "Peno- 
logical and Preventive Principles" (London, 1889), Cap. V. pp. 165 et seq.; Car- 
rau, "Etudes sur la theorie de revolution" (Paris, 1879), p. 192; Garofalo, "Criterio 
positivo della penalita" (Naples, 1880), p. 287; FouilUe, "La science sociale con- 
temporaine" (Paris, 1880), p. 287; Espinas, "La philosophie experimentale en 
Italie" (Paris, 1880), p. 160; Reinach, "Les recidivistes" (Paris, 1881), passim; 
Ten Kate and Pavloshi, "Sur quelques cranes criminels," R. A. (1881), fasc. I; 
Soury, "Le crime et les criminels," N. R. (February, 1882); Oettingen, "Ueber 
die methodische Erhebung und Beurteilung kriminalstatistischer Daten," Z. G. 
S. (1881), p. 42; Desportes, "Rapport sur la recidive," in the B. S. P. (Paris, 
1884), p. 123; DuCane, "Punishment and Prevention of Crime" (London, 1884), 
p. 4; Zuccarelli, "I delinquenti"; Acollas, "Les delits et les peines" (Paris, 1887), 
p. 10; Beaussire, "Les principes du droit" (Paris, 1888), p. 148; Joly, "Le crime," 
pp. 52, 73; Binswanger, "Verbrechen und Wansinn," 61st Congress of German 
Naturalists (Cologne, September, 1888) ; Krohne, "Lehrbuch der Gefangnisskunde" 
(Stuttgart, 1880), II, Th., § 1; Proal, "Le crime et la peine" (Paris, 1894), p. 445; 
Olrik, "Ueber die Einteilung der Verbrecher," Z. G. S. (1894), XIV, p. 76. 

2 Minzloff, "Etude sur la criminalite," P. P. (September, 1880); LeBon, "La 
question des criminels," R. P. (1881), p. 525. Puglia, "La psico-fisiologia e 
l'awenire della scienza criminale," A. P., II, p. 69; "II reato d' omicidio" (Milan, 
1881), id., p., 39; " Risorgimento ed avvenire della scienza criminale" (Palermo, 
1886), p. 38. Tamassia, "Gli ultimi studi sulla criminalita," R. S. F. (1881), II 
part, p. 198; "Aspirazioni della medicina legale moderna" (Padua, 1883), p. 25; 
Porto, "La scuola criminale positiva eilprogetto di nuovo codice" (Padua, 1884) 
p. 8; Lucas, "A Iocura perante a lei penal" (Lisbon, 1887); Liszt, "Der Zweck- 
gedanke im Strafrecht," Z. G. S., Ill, 1, p. 36 (Berlin, 1883), and "Apergu des 
applications de 1'anthropologie criminelle" in the Actes du Congres (Brussels 
1893), p. 95; "Die psychologischen Grundlagen der Kriminalpolitik," Z. G. S. 
(1896), p. 477; Medem, "Das Problem der Strafzumessung im Gerichtssaal " 
(1888), n. 3-4; Saleilles, "The Individualization of Punishment," Little, Brown 
&Co. (Boston, 1911); Fohring, "Uno sguardo alle instituzioni di Patronato dei li- 
berati dal carcere," in the " Atti del congresso internazional di beneficenza a Milano 



162 DATA OF CRIMINAL ANTHROPOLOGY [§ 105 

tinguishes: 1 (a) the incorrigible, criminals by feeling or instinct, 
subdivided into two groups : criminals by hereditary tendency and 
criminals through the habit of vice; (b) the criminals by action 
who are such through occasion or possession; (c) the criminals of 
thought who are the criminal insane. Arboux distinguishes also 2 
evildoers by instinct who have no remorse — habitual criminals — 
occasional criminals. This threefold classification is repeated by 
Starke who is concerned almost exclusively with recidivity, and by 
Moreau, Garraud, and Virgilio. 3 Maudsley, who distinguished ac- 
cidental, habitual and congenital criminals in "The Pathology of 
the Mind," has recently added to these classes that of the criminal 

nel 1880" (Milan, 1882), p. 432; Poletti, "II sentimento nella scienza del diritto 
penale" (Udine, 1882), pp. 52, 53; Badik, "Einteilung der Verbrecher in vier 
Typen," in the "Archiv fur Pathologie anatomie und physiologie " (August 
1884), and R. C. (1885), p. 110; Krauss, "Die Psychologie des Verbrechens " (Tu- 
bingen, 1884), pp. 227 et seq.; Benedikt, A. C. A. C. (Rome, 1887), p. 141; "Des 
rapports entre la folie et la criminalite " (Vienna, 1885) ; Pisa, " Benedikt e la nuova 
scuola di diritto penale," in the " Monitore dei tribuni " (Milan, 30 October, 1896) ; 
Bianchi, A. C. A. C. (Rome, 1887), p. 137; Marro, A. C. A. C. (Rome, 1887), pp. 
12 and 136; "I caratteri dei delinquenti" (Turin, 1887), p. 434, De Bella, "Pro- 
legomeni di filosofia elementare" (Turin, 1887), p. 159; "Anomalo " (Naples, April, 
1889); Topinard, " L'anthropologie eriminelle," R. A. (November, 1887), p. 687; 
Joly, "Le crime," p. 52; D'Haussonville, "Rapport dans l'Enqu£te parlementaire 
sur les etablissements penitentiaires," VI, 141, and 338; Motet, Testimony in the 
same Enqu&te, I, 195; Garofalo, "La criminologie," pp. 89, 90, 381 et seq.; Idem, 
A. C. A. C. (Rome, 1889), p. 139; "Rapport au congres A. C. de Paris," in the 
A. C. A. C. (Lyons, 1894), p. 73; "Sur la classification des criminels," A. C. A. C. 
de Geneve (1897), p. 145; Yvernh, "Comptes generates de la justice eriminelle de 
1838 a 1887" (Paris, 1889), Introd.; Sergi, "Le degenerazioni umane" (Milan, 
1888), p. 105; Foinitzlci, "La scienza delle pene e la teoria della detenzione" 
(in Russian, St. Petersburg, 1889), and bibliography in the A. A. C. (May, 
1889), p. 334; Pelman, " Zurechnungsf ahigkeit und Criminalitat," Report to the 
Congress of Alienists at Weimar in " Neurologisches Centralblatt " (October, 1891) ; 
Bonfigli, "Storia naturale del delitto" (Milan, 1893), p. 37; Baviera, "La 
riforma positiva delle scienze criminali" (Palermo, 1893), p. 44; Salillas, "El 
delincuente espafiol" (Madrid, 1896), and De Quiros, "Las nuevas teorias de la 
criminalidad" (Madrid, 1898), p. 94; Pellizari, "II delitto e la scienza moderna" 
(Trevise, 1896), p. 339; Severi, "L'uomo criminale," M. M. L. (Milan, 1896), 2d 
ed., Ill, p. 1611; Riviere, "Du r61e de l'individualisation dans 1' execution des 
peines," in the "Rev. penit." (July, 1897), p. 1045; Ziino, "Shakespeare e la 
scienza moderna" (Messina, 1897), p. 82; Perrier, "Les criminels," A. A. C. 
(September, 1898), p. 524. 

1 Lacassagne, "Marche de la criminalite," etc. in "la Rev. scientif." (Paris, 
May 28, 1881), p. 683. 

2 Arboux, "Les prisons de Paris" (Paris 1881), passim. 

3 Starke, " Verbrechen und Verbrecher in Preussen," p. 219; Moreau, "Sou- 
venirs de la petite et grande Roquette," II, p. 439, 441; and for thieves, "Le 
monde des prisons," p. 1; Garraud, "Droit penal et sociologie eriminelle," A. A. 
C. (1886), p. 17; Virgilio, "Passanante e la natura morbosa del delitto," pp. 41, 
45. 



§ 106] NATURAL CLASSIFICATION OF CRIMINALS 163 

insane, so that his classification is about the same as mine with the 
sole difference that I have classified criminals through passion separ- 
ately as a distinct variety of accidental criminals. 1 Corre also gives 
a classification which corresponds to the one that I have proposed. 
He distinguishes insane criminals (whom he calls pseudo-crim- 
inals), accidental criminals, and criminals by status or profession, 
among whom he includes born and habitual criminals; and adds 
a category of latent criminals or of pseudo-honest folk. 2 

§ 106. Colajanni and Lombroso Accept the Five Classes of Delinquents. 

After arguing against all of the data of criminal anthropology 
Colajanni finally accepts, as I said he would, the classification 
that I have proposed and only adds to it the category of political 
criminals, which is without logical or experimental consistency. 8 
If in obedience to political considerations which should never 
appear in science, he insists on having us know that political 
criminals, at least those who are really honest and normal men 
misguided by their political ideals, should not be confused with or- 
dinary criminals, then there is a logical contradiction in making 
them a class of "criminals," since from our standpoint they are 
not criminals but pseudo-criminals. If he pretends to put in this 
category all who commit offenses of a political character, he is 
not in harmony with experience, since political delicts may be 
committed and are committed every day, not only by men really 
misled by political passion (pseudo-criminal), but also by insane, 
born, occasional, and habitual criminals, who, either by social 
contagion or through personal circumstances, give their criminal 
tendencies the form of political crime. In our opinion, therefore, 
political criminals either are not criminals at all or else belong to 
one of the five categories of the general classification. 4 Lombroso 

1 Maudsley, "The Pathology of the Mind" (Loudon, 1878); "Remarks on 
Crime and Criminals," J. M. S. (July, 1888), and R. C. (1888), p. 81. 

2 Corre, "Les criminels," pp. 329 et seq. 

3 Colajanni, "Sociologia criminale," I, 352 et seq.; Sernicoli also, "L'anarchia 
e gli anarchici" (Milan, 1889), has made pretense of fixing a type of political 
criminal "an intermediate state between sanity and madness." But he has 
been refuted by Laschi, S. P. (30 September, 1894), p. 894. 

4 See Laschi and Lombroso, "Du delit politique," A. A. C. (Rome, 1887), pp. 
37 and 379; "II delitto politico" (Turin, 1890), p. 1, Cap. VIII and XI; Regis. 
"Les regicides" (Lyon, 1890); Harnon, "Les hommes et les theories de I'anarchie" 
(Paris, 1893); "La psychologie de Panarchiste-socialiste " (Paris, 1895); Gil 
Maestre, "Socialismo y anarquismo en relacion con la criminalidad," in the "Re- 
vista generala de legislatione y jurisprudenzia" (December, 1894 and January, 
1895); Dallemage, "Anarchie et responsabilite" (Brussels, 1895), and Van Eamel, 



164 DATA OF CRIMINAL ANTHROPOLOGY [§§ 107, 108 

in the second volume of "Uomo delinquente" also follows my 
classification. After speaking in his first volume of the born- 
criminal (identified with the morally insane and the epileptic 
criminal), he gives in his second volume a masterful anthropo- 
logical description of the criminal through rage or through pas- 
sion, of the insane criminal (with the alcoholic, hysterical, mattoid 
varieties) — and of the occasional criminal (with the varieties 
of pseudo-criminals, crimiualoids, criminals by habit, latent 
criminals, and epileptoids). 1 

§ 107. New Basis for Legal Science. 

A few conclusions of fact appear upon a comparative review 
of the different classifications. The necessity for abandoning the 
single and abstract criminal type, as well as the necessity of sub- 
stituting a classification which responds better to the variety of 
natural facts, is generally recognized. This classification, first 
begun from the viewpoint of the prisons, was extended by me 
(completed in 1880) to the proper and real field of criminal sociol- 
ogy where it has since enjoyed full rights of citizenship and where 
it has exerted the inexorable influence of a positive fact. While 
some criminologists, who recognize its truth, willingly assent to 
this division into several categories as useful in penal adminis- 
tration, we maintain on the contrary 2 that this distinction be 
recognized as one of the supreme norms of legal science, and that 
social defense should be regulated in matters of quality and 
degree according to it. In other words, social defense should be 
based on the fundamental data of criminal sociology. 

§ 108. Five Classes a Natural Division. 

Among the different classifications proposed there are no es- 
sential differences. This fact, while confirming the excellence of 
the experimental method which insists above all on the study of 

"L'anarchisme," A. C. A. C. (Geneva, 1897), pp. Ill and 253; Lombroso, "Gli 
anarchici," 2d ed. (Turin, 1895); Sernicoli, " L'anarchia e gli anarchici"; Laschi, 
"L'anarchia, gli anarchici e la Scuola positiva," S. P. (30 September, 1894); Proal, 
"La criminalite politique" (Paris, 1895); Venturi, "Regicidi c anarchici" (Ca- 
tanzaro, 1895); Ferrero, "Gli ultimi attentati anarchici o la loro repressione," in 
the "Riforma sociale," I, p, 11 (1895); Kennan, "Les prisonniers politiques en 
Russie" (Geneva, 1896); De Veyga, "Anarquismo y anarquistas, Estudio de an- 
thropologia criminal," in the " Anale del departmento nazionale de higiene" (Bue- 
nos-Ayres, September, 1897); Sernicolli, "I delinquent anarchici" (Rome, 1899). 

1 Lombroso, "L'uomo delinquente," 5th ed., vol. I and II. 

2 See Chap. Ill, post, and the positive theory of imputability there outlined. 



§ 108] NATURAL CLASSIFICATION OF CRIMINALS 165 

facts and forbids the theoretical opposition of principles usual in 
"a priori" systems, shows that the substance of the observations 
made and the inductions drawn actually correspond to natural 
reality. There is in fact unanimity on the primitive and funda- 
mental separation of occasional criminals from those by instinc- 
tive tendency, of those who are capable of betterment from those 
who are incorrigible. There is unanimity also for the subdivision 
of each of these great categories into two varieties, thus obtain- 
ing the four classes: occasional criminals, criminals by passion, 
born-criminals, and criminals by mental alienation. There will 
remain the further category not conceded by all, — the interme- 
diate category which includes those whom I have called criminals 
by acquired habit. Aside from the unimportant differences of 
nomenclature, the partial disagreement in classification has its 
source in the difference in the distinguishing criteria adopted. 
The classification of Lacassagne, Krauss, Joby, Badik, Marro, 
and Pelman, at least in their primary denominations, show simply 
a descriptive criterion, centered on the manifestations of crime 
in the three principal branches of human life, — sentiment, idea, 
and act, and only take into account the marks of the descriptive 
and not the genetic psychology of the criminal; or consult only 
his organic marks. The same may be said of the classifications 
of Liszt, Medem and Minzloff which are determined by a cura- 
tive or defensive criterion such as the efficacy of punishment; of 
the classification of Fohring with its special point of view of pat- 
ronage; and finally, of the classification of Starke based on the 
symptomatic criterion of a single mark which is in truth distinc- 
tive but too special, namely, that of recidivity. The criterion which 
I adopted in making my classification is genetic and casual, that 
is, it pertains to individual physical and social causes from which 
the different manifestations of criminal activity are derived. As 
such, it seemed to me to respond better to the theoretical exigen- 
cies and practical needs of criminal sociology. In fact, the major- 
ity of the other classifications inspired by this very criterion (those 
by Puglia, Benedikt, Prins, Maudsley, Carre, Garofalo, Bonfigli, 
Severi, and Lombroso) either reproduce my classification in its 
basic distinctions or can be reduced to it and hence correspond to 
it. My classification receives overpowering confirmation from the 
fact that it can include every other classification. It is evident 
that it faithfully represents the constant and common fund of all 
the principal anthropological categories of criminals both in re- 



166 DATA OF CRIMINAL ANTHROPOLOGY [§ 108 

spect to their natural origin and distinctive marks and the different 
methods of social defense derived from it. 1 I will make one obser- 
vation of fact, so to speak, and one of law for those who subscribe 
to a different classification. The fact: the reason that Puglia, for 
example, did not accept a separate category for criminals by ac- 
quired habit, is that he gave his attention only to attempts against 
the person, especially to homicide, and we cannot accept, at least 
in an absolute way, a class of homicides by acquired habit in the 
sense that they have become such principally through the co- 
operation of external surroundings. Our classification has the 
mark of generality valuable for all criminal forms and must nat- 
urally vary in adapting itself to a given class of crimes taken sep- 
arately. The same may be said to those who do not accept the 
class of criminal insane because they consider that these belong to 
psychiatry and not to criminal anthropology. The observation 
of law is this : the true positivist should not improvise classifica- 
tions in his study, but should deduce them from the direct study 
of natural facts; in our case from the study of criminals. Now I 
dispute the right of mere formal logic to declare a class of phenom- 
ena non-existent unless its decision is supported by a mass of posi- 
tive observations. Each category of criminals pictures a reality 
of fact observed in the prisons. To weaken its existence it must 
be opposed by other facts, other anthropological observations 
capable of correcting and completing the previous observations 
and facts. In reality (and this is the most popular criticism of 
the opponents of criminal anthropology) it is as easy as it is futile 
to say that such a type or such a fact does not exist. It is easy to 
deny. Proof by experience is more difficult but more positive, 
hence, all the syllogistic objections offered to criminal anthro- 
pology have not prevented its development and progress. In 
conclusion, let us bear in mind that as a general rule it is better 
to abound in distinctions rather than to confound facts with differ- 
ent determining causes in a single series. To give another illus- 
tration, it has been recognized in biological research that the 

1 The bio-social classification of criminals proposed by me is now accepted and 
followed almost unanimously by anthropologists and criminal sociologists, as may 
be seen among the more recent: Kurella, "Naturgeschichte des Verbrechers," 
p. 262; Viv eiros di Castro, "A nova escola penal" (Rio de Janeiro, 1894), p. 127; 
Paolucci, "Basi nove del diritto di punire" (Frosinone, 1896), p. 145; Bonanno, 
"II delinquente per passione"; Motta, " Classificacao dos criminosos" (S. Paulo, 
1897), p. 18; Ottolenghi and Rossi, "Duecento criminali," pp. 212-213; Angiolella 
"Manuale di antropologia criminale," p. 273; AUongi, "Manuale di polizia scien- 
tific " (Milan, 1899), p. 260. 



§ 108] NATURAL CLASSIFICATION OF CRIMINALS 167 

method of restricted series is much superior to that of broad series. 
If social therapy, like individual therapy, seeks the indication of 
remedies from a minute and complete knowledge of causes, it is 
evident that by distinguishing a sub-class in the great category of 
incorrigible or occasional criminals, we aid the study of remedies 
which may be applicable to these morbid manifestations of 
social life. Of this, we shall become even more convinced in con- 
sidering the social causes of criminality with the aid of statistics. 



PART II 
DATA OF CRIMINAL STATISTICS 

CHAPTER I 

METHODS OF COLLECTING CRIMINAL STATISTICS 1 

Moral and criminal statistics. History and statistics. Natural and legal 

criminality. 

§ 109. Importance of Criminal Statistics. 

In social phenomena, experiment, easy in physical and biolog- 
ical phenomena, is difficult and often impossible, and observation 
is the most suitable means of scientific research. Statistics are 
among the most useful methods of observation. Hence, it is 
natural that the cri min al sociologist, after his study of the individ- 
ual in the natural genesis of crime, should have recourse to crim- 
inal statistics. This, says Krohne, is the first condition of success 
in the battle with the forces of crime and answers the same func- 
tion as reconnoitering in war. 2 For, if, as Quetelet said, statistics 
are the "nosce te ipsum" applied to society, or if speaking less 
accurately with Fere, 3 statistics are "the conscience of the social 
organism," they are the source of the modern conception of the 
intimate connection of crime, in a part of its genesis and in its 
special forms, with the conditions of social life. Criminal statis- 
tics are for criminal sociology what histology is for biology. They 
show, in the individual elements which compose the collective 
organism, the basic reasons of crime viewed as a social phenome- 
non not only in the field of scientific research and induction, but 
also in that of practical legislative application. Lord Brougham 
at the statistical Congress at London, in 1860, said, "Criminal 
statistics are to the legislator what charts, the compass, and the 

1 For the history of these researches, see: Oettingen, " Geschichtliche Entwicke- 
lung der Moralstatistick," pp. 20 et seq., of his " Moralstatistick " ; Fvld, "Die 
Entwickelung der Moralstatistick" (Berlin, 1884). 

2 Krohne, "Der gegenwartige Stande der Gefangnisswissenschaft,'' Z. G. S. 
(1881), I, 75. 

3 FSrS, " Degenerescence et criminalite" (Paris, Alcan, 1888), p. 123. 

168 



§ 110] COLLECTING CRIMINAL STATISTICS 169 

lead are to the navigator." x This they are or this they should 
be, and yet in compiling the new Italian Penal Code, the preced- 
ing Italian codes (the Tuscan, for example) and the more modern 
foreign codes were copied and retouched in a more or less happy 
fashion, but the legislators, although wavering between ancient 
and modern ideas, made not the slightest pretense of considering 
the most obvious results of criminal statistics in our country. 2 

§ 110. Method of Collecting and Studying Criminal Statistics. 

In the case of statistical data as in the case of criminal anthro- 
pology, it is well to present some preliminary observations on the 
study of such data, before drawing lines and general conclusions. 
As to the method and technical procedure of abstracting and 
weighing the data of criminal statistics, Oettingen has given some 
ideas which deserve to be recorded, since this subject has never been 
developed, either before or after him, except from a more strictly 
technical viewpoint, which less concerns us. The author of 
"Moralstatistick" begins with the declaration: "The abstracts of 
criminal statistics, thus far attempted, have been made at hazard, 
so that a student who wishes to make a special research is discour- 
aged by finding no definite point of departure. The tendency to 
deduce from criminal statistics conclusions of public morality, and 
particularly of the corruption of national morals, is more general 
than one would believe; but it is not scientifically accurate because 
the mere figures of delinquency do not give exactly the direct meas- 
ure of the immorality of a people although they always furnish 
an important symptom of the morbid state of society. ... It is 
also evident that in the social and moral comparison of different 
nations the figures cannot be employed without correction. It is 
not solely a question of penal legislation. That differs in the 
various countries and changes even in the same State so that even 

1 Romagnosi, " Osservazioni statistiche sul resoconto della giustizia criminale 
in Francia pel 1827," in the "Annali Universali di statistica" (1829), XIX, I; 
Bentham, "Principles of Legislation, I, cap. 9-10; Abegg, " Bedeutung der Criminal- 
statistick fur die Wissenschaft, Anwendung und Gesetzgebung im Gebiete des 
Strafrechts," in the"ZeitschriftdesKoniglichenPreuss. Statistik Bureaus " (1866), 
p. 115; Fuld, "Einfluss der Kriminalstatistick auf Strafgesetzgebung," etc. in the 
"Archiv fiir Strafrecht" (1885), p. 220; Mischler, "Die Criminalstatistick als 
Erkenntnissquelle," in the "Handbuch des Gefangnisswesens of Holtzendorff" 
(Hamburg, 1888), I, 56. 

2 Ferri, "Discorsi parlamentari sul nuovo codice penale" (Naples, 1889), pp. 
SO et seq., and "Intorno al nuovo codice penale," in the "Difese penali e studi di 
giurisprudenza." 



170 DATA OF CRIMINAL STATISTICS [§ 110 

in the same country the figures of crime cannot be compared with 
those of the other legislative periods. This is particularly true 
of France, of which country the criminal statistics covering more 
than a half-century have recently (1880-1881) been voluminously 
treated by Enrico Ferri. Yet it seems to me that Ferri himself 
falls into the error of drawing too precipitate conclusions from 
figures and of finding in them (whatever account he may take of 
legislative periods) a criterion of the increase or decrease of crim- 
inal tendencies in the life of the people and in the whole social 
body. In my opinion, the absolute number of crimes detected 
and judged is not at all decisive. The increase in the num- 
ber of crimes brought to trial may, indeed, if due to the increase 
in the repressive force of justice and police, be a happy and favor- 
able symptom. Ferri himself concedes that the fluctuations of 
annual criminality, and especially the increases indicated after 
1832, 1848, and 1872, were largely due to the rigor of the laws 
and the vigilance of the police. Hence it seems to me that he 
should protest more energetically than he does against the 
conclusions that the given degrees and curves of criminality 
express effective opposition to law, or show the ' inclination towards 
crime,' — an idea which is found in the studies of Guerry on 
France and England. It is true that Ferri distinguishes between 
real, apparent, and legal criminality. To the last (statutory 
crime), which is represented in the figures of causes tried, too 
much weight is given; we see in it the criterion of the increase or 
decrease of public morality and the proof of a certain 'crimi- 
nal saturation' produced in accordance with a determined law, 
superinduced by social factors in the spirit of the people toward it. 
"Neither the ethical nor the naturalistic conclusion seems jus- 
tifiable to my mind. At least in this aspect the absolute figures 
are not decisive. Wherefore, it is necessary, as Ferri himself has 
shown, to use other experiments in order to arrive at really certain 
results. The extension and intensity of crime (the one, resulting 
from the number of crimes brought to trial, the other, from its 
relation to population) have positively no decisive importance if 
used as an ethico-social barometer for lawless activity. Aside 
from external causes which may determine the increase or de- 
crease of the number of crimes (peace or war, cost of living, pov- 
erty, epidemics and other calamities), the absolute number of 
crimes actually punished is certainly not so annoying a symptom 
as the number of transgressions for which justice exacts no expia- 



§ 111] COLLECTING CRIMINAL STATISTICS 171 

tion. Thus the relatively higher figures of delinquency may be 
a relatively favorable symptom." 

I might make many observations but I shall remark only that 
in statistics there may be not only too much caution but also 
too much carelessness, and that both are harmful. Nor shall I 
repeat what I have said on the method to be pursued in the study 
of criminal anthropology. I shall content myself now with the 
remark that the task of biological and statistical observations, 
confused by Oettingen, are not the same; and that the statistics 
of impersonal numbers are not greater in importance and result 
than personal observation, which gathers facts by the study of a 
mass of individuals, with the same method and the same instru- 
ments. As Cheysson says, contrary to statistics and its summary 
totals, "monographic labors seize upon a typical fact and pene- 
trate it to the bone." Nor shall I recall that a great many of the 
propositions of Oettingen relative to statistics had already been 
applied by me in "Studi sulla criminalita in Francia" and in "De- 
litto in rapporto alia temperatura." For example, the necessity 
of taking the legislative changes and the number of police agents 
into account; the necessity of studying not only the more serious 
crimes but also the lesser offenses; the classification of the three 
groups (anthropological, telluric, and social) of the causes of 
crime, a classification used by many writers on criminal statistics; 
finally the proportion of acquittals and the various kinds of pun- 
ishment — a question to which I gave my attention in a degree 
too rarely found in the preceding labors in criminal statistics. 1 
Putting aside these personal observations, I will touch only upon 
those which have a general importance in the use of statistics in 
studying criminal sociology. 

§ 111. Use and Abuse of Statistics. 

Beginning with consideration of the very limited confidence 
which Oettingen and many others accord to abstracts of statistics 
(without remarking that they always come back to statistics 
because they have no alternative), I admit, that if they wish to 

1 The two preliminary studies which I began in my "Studies on Criminality 
in France" are: I. "On the value of statistical data as a faithful representation of 
actuality (real, apparent and statutory criminality) . — II. "On the manner of com- 
parison between different periods, regard being had to legislative changes." (Rome, 
in the "Annali di Statistica" 1881.) And "Das Verbrechen in seiner Abhangigkeit 
von dem jahrlichen Temperaturwechsel," Z. G. S. (1882); "Variations thermo- 
metriques et criminalite," A. A. C. (1883). 



172 DATA OF CRIMINAL STATISTICS [§ 111 

emphasize the imperfection of statistical data in order not to 
lose sight of the fact that such data give only a certain degree of 
probability and not absolute certitude nor photographic accuracy, 
then we are in perfect accord with them. But if they recognize 
no value in statistical observations, I cannot accept their verdict. 
Otherwise, by mere force of argumentation, such very curious 
conclusions could be reached, as, for example, the following: 
"What crime are you making notes of? In the accusation there 
is only suspicion; in the preliminary investigation, only an in- 
complete notion; in the trial, only the unknown quantity of a 
problem; in the verdict, only a theme of debate; in the sentence 
only the opinion of a judge. Thus, statistics, based upon elemen- 
tary data always denied, uncertain, and changing are like a lever 
wanting an ubi consistere." 1 The significance of this is, that by 
reason of exaggeration in discussing the imperfections of statistics 
and all the other means of scientific research, one comes, thanks to 
the "suspicions" at the time of arrest, the "unknown quantity" 
of the trial, and the "debate" of the verdict, to a disregard and 
elimination of two or three thousand murders which, good year 
or bad, are annually committed in Italy. Certainly the same is 
true of statistics as of anything else: a rational use of them may 
be made or they may be abused by empiricism or by reliance upon 
an "a priori" theory. But, aside from all futile discussion, we 
should oppose statistics with a distrust, even excessive, — with 
a scepticism, even exaggerated, when a fact is brought to our 
attention in their name which savors of the miraculous or which 
is not explicable without them by the recognized general laws of 
psychology and sociology. When statistical figures present a 
fact, however unexpected, which the statistician shows in a nat- 
ural and constant relation with some law antecedently admitted 
and verified, then it is perfectly right to say that the presumption 
of truth is in its favor; that, in any event, if the unpleasant facts, 
which have been brought to light, are to be disputed, they must 
be contested not with syllogisms alone, but by other facts which 
destroy and contradict them and which in turn are supported 
by other laws not less general and positive. Such is the reply 
which may be made, for example, to those who by an obvious 
contradiction and incomplete use of statistics, assent that alcohol 
is not a factor in crime, since the States and provinces which con- 
sume the most do not record the greatest number of homicides 
1 Sal-pace (Pascal), "Uso e abuso della statistica" (Roma, 1885), p. 31. 



§ 112] COLLECTING CRIMINAL STATISTICS 173 

and other offenses. 1 It would really be a miracle if a cause unde- 
niably pathological with individuals ceased to be the same with 
the mass of these same individuals. The truth is, that alcoholism, 
not being the sole factor in crime, may, in the different countries, 
be neutralized by other predominant factors, such as race, or social 
environment. 

§ 112. Ethico-social Inductions from Criminal Statistics. 

On my part, I must make a serious objection to the projects 
of "ethico-social" judgments which Oettingen has seen fit, with 
some precaution, to institute on the data of criminal statistics. 
That is to say, he, with many others, talks of moral statistics, 
while I think that simply criminal statistics should be taken. Oet- 
tingen is doubtless right as against those who, like Legoyt, Haus- 
ner, and more recently Levi, 2 think that they can construct a scale 
of comparative national morality from criminal statistics; but in 
my opinion he falls into a similar error, when, as we have so often 
seen, he speaks of the ethico-social significance of the data of 
criminal statisics. That is why I have never drawn any ethico- 
social inductions from comparative criminal statistics. Never, 
even in the case of a single country, have I spoken of "the crim- 
inal tendency in the life of the people." Criminal statistics tell 
us this and nothing more: — In such a year there was more or less 
crime than in other years. Now, on the one hand, I affirm that 
these simple data cannot justify any ethico-social judgment even 
when it reaches the highest degree of precision, representing 
crimes actually committed and not merely those which have been 
discovered and tried, because the morality of a people embraces 
too many elements that this data does not include. Let us even 
admit, with Mayr, that criminal statistics are but part of moral 
statistics which should also make its induction from the demo- 
graphic figures of marriages, divorces, births both legitimate and 

1 Tammeo, "I delitti, saggio di statistica morale," R. C. (1881-1882), p. 56; 
Fournier de Flain, "L'alcool et l'alcoolisme," E. S. (14 August, 1889). And in a 
more absolute way, Colajanni, "L'alcoolisme" (Catane, 1888), although he cites 
neither Tammeo nor Fournier, who, less absolutely than himself, had maintained 
the same thesis. 

2 Levi, "The Progress of Morals in England," cited by Bosco, "Gli omicidi in 
alcuni stati d'Europa" B. I. I. S. (Rome, 1889). See also, Inama Sternberg, 
"Zur Kritik der Moralstatistik," in the "JahrbuchftirNationalok. und Statistik" 
(1883), p. 505; Falkner, "Crime and Census," in the "Annals of American Acad- 
emy of Political Science" (January, 1897), and in the "Zeitschrift fur Criminal- 
anthropologie" (1897), fasc. 3. 



174 DATA OF CRIMINAL STATISTICS [§§ 113, 114 

illegitimate, the number of suicides, and education. Yet the loy- 
alty of the people, their honesty in civil and commercial relations, 
the family relationship, the degree of moral and civic education, 
public charity, the manner in which, aside from public charity, 
the disinherited classes are treated, — what have all these in 
co mm on with criminality? And yet they are so many important 
factors in the moral life of a people. The truth is, as Ortolan and 
Messedaglia have observed, that "the statistical study of moral 
conditions can only be made by means of exterior indices, and these 
indices are for the most part drawn from facts indicative of dis- 
order. Order is less readily discerned and felt because it ought 
to be the rule. One perceives the beatings of the heart only when 
they have become irregular. It is death which measures life. In 
like manner morality is denned and measured by immorality; 
respect for law, by the infractions which violate it and by crime." 1 

§ 113. Criminal Sociological Demands of Statistics. 

But on the other hand, the elementary data of criminal statis- 
tics suffices for the purpose and needs of criminal sociology. In 
reality, it more or less notes the annual and periodical movement 
of crime, whether apparent (discovered and denounced) or legal 
(brought to trial), 2 and from this data criminal sociology attains 
to a study of the most general and evident causes. But it does not 
attempt, I repeat, to judge so complex, fluctuating, and diverse 
an entirety as that of a people's morality, by a single unilateral 
and negative element. 

§ 114. Biological Aspect of Criminal Statistics. 

This is the sociological aspect of criminal statistics to which the 
biological should be joined, since statistics must be consulted as 
to the variable and proportional participation of different ages, 
sexes, and professions in criminal life. But, although the individ- 
ual or biological side of criminal statistics has been actively cul- 
tivated, the social side has been neglected. Yet it is principally 
from this that the sociologist and legislator can and must seek 
indications for social pathology and therapy. When we under- 
stand the part played in crime by the different ages, sexes, profes- 

1 Ortolan, "Elements du droit penal," I, 646; Messedaglia, "Le statistiche 
criminale dell' impero Austriaco" (Venice, 1867), p. 8. 

2 I have shown by minute calculations in my "Studi sulla criminalita in Fran- 
cia,'' that they are in approximate relations of equivalence with each other. 



§ 115] COLLECTING CRIMINAL STATISTICS 175 

sions; by the civil status and education, we find ourselves face to 
face with effects deeply rooted, not only in social, but also in the 
organic and psychic conditions of man (less difficult of compari- 
son and less variable historically.) And then, after surmounting 
the difficulty of making the legislator understand the data of 
sociological observation, we may outline them in a very restricted 
way and by indirect means. If, on the other hand, we have deter- 
mined the influence which a civil law, a police regulation, an ex- 
cise tax, an institution of public charity, or a measure relating to 
commerce, agriculture, or the like, exercises on criminal activity, 
we find ourselves confronted with effects purely social and conse- 
quently under the more direct and efficacious control of the law- 
maker. Then the legislator, with an adequate knowledge of the 
social factors of crime and their respective force, can not only 
correct exaggerated or false ideas on the importance of certain 
remedies, but even suppress or modify the causes of disorder by 
preparing a different social organization and thus organizing a 
truly effective defense against the criminal activity of man. Nat- 
ural forces can be overcome only by opposite and divergent natural 
forces. Hence, the criminal sociologist, abandoning the sterile 
illusion that crime springs from the fiat of individual free will, 
will determine first of all the direction and intensity of the nat- 
ural forces which produce crime in order to know how to oppose 
them by other natural forces protective of right, which will fruc- 
tify lawful activity and honest energy. This is also the reason 
why the data of criminal statistics, which we shall study in this 
chapter, comprehend the social side of crime as more important 
and less explored by scientific research, for complete light has 
been shed upon it only by the new direction of criminal sociology. 

§ 115. Statistics and History. 

In the study of this sociological side there are some who think 
that criminal statistics should be not only aided but controlled by 
historical research. They contend that in gathering and study- 
ing the factors of crime, the statistical phase is not enough with- 
out the evolutionary movement of succession afforded by history. 1 

1 Colajanni, "Sociologia criminale," II, pp. 46, 47, 54; Neumann, "Sociologie 
und Statistik," in "Statistica Monat.'' (Vienna, 1878); Vanni, "Prime Iinee di 
un programma critico di sociologia" (Perouse, 1888), § VI. 

And, for general statistics, Juglar, "Les tableaux statistiques portent-ils les 
traces des evenements historiques, politiques et economiques?" "Journal de la 
Societe Statistique" (Paris, July 1, 1898). 



176 DATA OF CRIMINAL STATISTICS [§ 116 

The thought that history can aid statistics is right, although it is 
inexact to say that statistics give only a static moment. The idea 
is not new and from it comes the erroneous definition of Schloser 
to the effect that "history is statistics in motion and statistics 
history at rest " : yet (although under different modes) coexistence 
and succession are common to both history and statistics. What 
is inexact is the other idea that history serves as a control for 
statistics. I will not insist upon the fact that history, as generally 
written, is but the superficial and sterile registration of the ex- 
ternal and apparent events of social life, or that history does not 
go deeply into physical, psychological and sociological conditions. 
It is very true, however, that history, even when treated in a 
positive spirit and with a positive method, can of itself give only 
qualitative elements, while those given by statistics are essen- 
tially quantitative: hence it is hard to persuade oneself that one 
can accurately control the other. 

§ 116. Distinction between Natural and Legal Crime. 

Let us, therefore, eliminate this control. As a rule of method 
in gathering and studying statistics one thing, to which in my 
opinion not enough importance has hitherto been given, is the dis- 
tinction between the forms of natural and legal crime. Every 
law promulgated is a direct or indirect source of infractions which 
go to swell the figures of penal statistics. A mania of legislation 
thrives today in civilized countries, whose short-sighted govern- 
ments do not look beyond the symptoms of social pathology and 
who oppose a new prohibitive law to each new or more acute symp- 
tom. Thus they multiply laws, but not their preservative effi- 
ciency, while the causes of these symptomatic facts remain intact 
or even become envenomed. Therefore it is evident that in the 
study of long statistical series we are confronted 1 with a numeri- 
cal increase of violations of a purely contra ventional character or 
of "purely political creation," which have very little relation to 
natural crime, which is of greater interest because it destroys 
the conditions of social existence. Thus, without even going out 
of the domain of statistics, "the discussions and controversies 
which have taken place in Italy, Germany, and England on the 
increase or decrease of crime, arose because of a failure of the 
necessary separation of natural from political crimes and contra- 
ventions, or because of its impossibility by reason of the defective 
1 Ferri, "Etudes sur la criminalite en France" (1881). 



§116] COLLECTING CRIMINAL STATISTICS 177 

manner in which the statistics were prepared." 1 It is necessary 
and urgent that this distinction between natural and legal crimes 
should always be regarded in the data and inductions of criminal 
sociology. As we have seen, it is rooted in criminal anthropology 
and we shall see it applied to all of the researches of criminal 
statistics — on the relation between civilization and crime, on 
the movement of criminality in Europe, on the personal qualities 
of criminals, on the law of criminal saturation. We shall see it 
shown accurately in the separation of ordinary from politico- 
social crime. This distinction is fundamental: without it, con- 
fusion would reign in the researches of criminal anthropology and 
statistics and the conclusions from these studies would be extrav- 
agant. Without it, we could not discern nor regulate the double 
origin and function of penal justice which we shall take up at a 
later point. These incrustations of class defense (which easily 
degenerates into class tyranny) against the forms of legal crime, 
add to the primitive and permanent kernel of social defense against 
the forms of natural crime. The most violent, most ineffective, 
most iniquitous repression, through lack of appreciation of the 
bio-social genesis of the double series of attacks on the conditions 
of social existence, will no longer be employed indiscriminately 
for both. 

1 Bosco, "Lo studio della delinquenza e la classificazione dei reati nella statis- 
tica penale," in the "Bulletin, Indust. intern. Stat." (1892), VI, p. 2, p. 184. 



CHAPTER II 

CIVILIZATION AND CRIME 

Relation between honest and criminal activity. Anthropological, physical and 
social factors of crime. 

§ 117. Evolution of Crime. Pathological Incidents of Civilization. 

After thus developing the method of observation and inter- 
pretation of the data of criminal statistics, and before making in 
broad outline a positive examination of it, another observation of 
a general character requires consideration. One of the questions 
which arose at the very beginning l of criminal statistics, in the 
presence of the continual increase of crime in the civilized countries 
of Europe, was the relation of civilization to crime as well as to 
insanity and suicide. Evolution, whether in the sociological or 
biological order, does not of itself necessarily imply absolute prog- 
ress; but advance in one direction is accompanied by some reac- 
tion in another, notwithstanding the uninterrupted ascent as a 
[general resultant. Hence it is that one may say of civilization, 
especially in its manifestations, often pathological, at the end 
of the nineteenth century, and of the decline of the bourgeoise 
regime, what is said of degenerescence in the biological domain. 

§ 118. Evolution of Crime in Civilization. 

As every progressive evolution is accompanied by a retrogres- 
sive evolution of the preceding forms and functions, so even degen- 
eracy itself may be accompanied by progressive evolution. In 
the same way that genius is the sublime product of a biological 
degeneracy accompanied by inferior manifestations (impulsive- 

1 Romagnosi, " Osservazioni statistiche sul resconto della giustizia criminale 
in Francia," in the "Annali Universali di statistica," 1829, XIX, I; Lombroso 
"L'uomo delinquente," 2d ed., pp. 251-269, and 5th ed., vol. Ill, p. 46; Messedaglia, 
"La statistica della criminalita" (Rome, 1879), pp. 35 el seq.; Oettingen, "Moral- 
statistik," § 48; "Bildung und Sittlichkeit" in the "Baltische Monatschrift," XXX, 
4, pp. 333, el seq.; Tarde, "La statistique criminelle," R. P. (January, 1883), and 
"Criminality comparee," Cap. II and Cap. IV, § 3; Turati, "II delitto e la ques- 
tione sociale"; Ferri, "Socialismo e criminalita." 

178 



§ 118] CIVILIZATION AND CRIME 179 

ness, lack of balance, dull sensibilities), — so also civilization, 
alongside of the most brilliant manifestations of human progress, 
exhibits to us the toxic products of the special criminality proper 
to it, of suicide, or insanity. 1 For my part, I think that, putting 
aside the causes of equivocation that come from the different 
meanings given the word civilization which we should understand 
as simply expressing, without teleological preoccupation, the 
evolutionary movement of social life, we could say with Messe- 
daglia, that civilization, like barbarism, has its own characteristic - 
criminality. Furthermore, in opposition to the primitive thesis of 
sentimental socialism which attributed the origin of crime to 
bourgeoise organization, I argued and I argue (with the assent 
to-day of scientific socialism) that every phase of civilization has 
its peculiar criminality which corresponds to it. As there was 
a criminality of violence and bloodshed in feudal society, and a 
criminality of robbery and fraud in bourgeoise society, so the 
criminality of society of the future will have its own appropriate 
character. Two phenomena may be met in the history of crime: 
first, as Tarde has observed, civilization reabsorbs successively 
the forms of criminality which it has determined and determines 
new forms; second, crime undergoes a double morphological evo- 
lution which makes it the typical expression of each historical 
period for each social group. Leaving aside the extension of crime 
due to special laws in the forms of purely conventional delinquency, 
natural crime passes more and more from the material forms of 
violence into the intellectual forms of cunning and fraud. It thus 
reproduces the evolution by which man ceaselessly gets further 
and further away from his animal and savage origin. Crimes 
against property, especially in the numerous forms of indirect 
robbery, become more and more numerous in comparison with 
crimes of bloodshed. Even the latter assume forms more and 
more intellectual, and homicide itself is contrived with craft in- 
stead of violence. The brutal infanticide which Tolstoi pictures 
in the "Puissance des tenebres" where he describes the father 
who crushes his child under a timber in a cave, is succeeded by the 
sophisticated infanticide which d'Annunzio represents in the 
"1/ Innocento" where he describes a father who gives his new-born 

1 Carpenter, "Civilisation, its Cause and Cure" (London, 1889); Demoor, 
Massart and Vandervelde, "L'evolution regressive" (Paris, 1897); DeGreef, "Le 
transformisme social" (Paris, 1896); Lombroso, "Genio e degenerazione " ; Ferri, 
"La rehabilitation des anormaux," "Revue des Revues" (15 February, 1889). 



180 DATA OF CRIMINAL STATISTICS [§ 119 

child pneumonia by exposing it to the blasts of a Christmas night. 1 
Thus in Italy we have seen brigandage transformed in these last 
years and pass -from the armed robberies of the Middle Ages and 
from ransoms demanded of its victim, into the pensions which 
Tiburzi received and which Varsalone receives from great pro- 
prietors for protecting them against the smaller thieves. 

§ 119. Evolution of Crime. 

In regard to the law of social stratification, we see that the in- 
creasingly intellectual evolution of crime results in the shortening 
of the passage from the popular strata to the so-called superior 
classes, which implies the abandonment of violent and impulsive 
for astute and cunning forms. This transformation is verified 
by analogy between the social progress and criminality in the 
subdivisions of the same country, and in their relation in the less 
progressive countries of Spain, Italy, Greece, Hungary, and Rus- 
sia, and the more progressive countries of Northern Europe. The 
same transitions are observed in North America in going from 
the backward States of the Southwest to the more advanced 
Northeastern States. 2 Again, and parallel with this morphologi- 
cal outline, which it is true does not express a real support of moral 
sentiment, crime passes from the acute and sporadic state to the 
chronic and epidemic. Superficial observers have spoken of an 
end-of-the-century ("fin de siecle") criminality, but the expres- 
sion is meaningless because the arithmetical division of time is 
quite arbitrary. Max Nordau speaks of a criminality indicative 
of the end of the race ("fin de race"); but it is more exact to say 
with Sighele that there is question of a criminality of the end of 
class ("fin de classe") since in our day we see reproduced in the 
bourgeoise class the phenomena of social degeneracy which two 
hundred years ago announced the end of the then dominant classes 
and which caused Voltaire to say that he had "great desire to 
walk on four paws." 3 

1 Ferri, "I delinquent nelT orte" (1896). 

2 Niceforo, "L'ltalia barbara contemporanea'' (Palermo, 1898); Bosco, "Gli 
omicidii in Europa"; "L'omicidio negli stati uniti," ibid., X, 1; Ferri, "L'omi- 
cidio," pp. 250 el seq. 

3 The author, no doubt, alludes to the well-known letter of Voltaire to Rous- 
seau (30 August, 1755). In this case the expression of Voltaire does not bear the 
construction given to it: it merely scoffs in a just, if sarcastic way, at the chimeri- 
cal ideal which Rousseau seems to have pictured to himself of primitive savage 
men, according to him perfectly moral and perfectly happy, and to whom civiliza- 
tion only brought inequality, vice, and misery. 



§§ 120, 121] CIVILIZATION AND CRIME 181 

§ 120. Crime and Education. 
In fact, we observe every day that criminality under certain 
intellectual and disguised forms is not restricted to the "putrid 
environment," of which Tarde recently spoke, but that it exists 
among all of the social classes, even the most cultivated. This is 
sufficient to show how baseless is the reproach which certain 
persons, with more or less avowed reactionary intent, oppose to 
popular education, that it contributes to the increase of fraudu- 
lent crime. As Rumelin, 1 an author above suspicion, has himself 
conceded, intellectual culture cannot but aid the morality of the 
masses, not only as an indirect influence (as maintained from 
Socrates to Buckle, for the reason that ignorance is a formidable 
source of perversity) but further, I should say, as a direct influence, 
since education aids in correcting or diminishing improvidence in 
the great mass of occasional delinquents, and this is, in their case, 
the most powerful stimulant to crime. 

§ 121. Crime and Ease of Conditions of Life. 
Since criminality is always in its general average related to 
the greater or lesser ease of the conditions of life, neither an Uto- 
pian return to the dominance of religious beliefs nor the bar- 
barous proposal of restricting popular education will put an end 
to the criminal epidemic of the last fifty years. The remedy can 
only be found in an amelioration of the conditions of human exis- 
tence through a more satisfactory economic organization of so- 
ciety. Since the symbolical cry — enrich yourself — was launched 
in the first half of the last century, the moral malady of "cteso- 
mania" (mania for wealth), which makes wealth the supreme 
end in life and the necessary condition of happiness, it has never 
ceased to develop. The value of a man is caculated not on what 
he is but on what he has, so that contemporaneous humanity 
lives under the obsession of riches. Now ctesomania always leads 

1 Rumelin, "Probleme d'economie politique et de statistique" (Paris, 1896) 
pp. 221 el seq. 

See also for and against, FouilUe, "Les jeunes criminels, l'ecole et la presse," 
R. D. M. (15 January, 1897); Rostand, "Pourquoi criminalite monte en France et 
baisse en Angleterre," in the "Reforma sociale"; Tarde, "La jeunesse eriminelle, ,r 
in the "Revue pedagogique" (March, 1897), and "Etudes de psychologie sociale' 
(Paris, 1898); Worms, "L'ecole et le crime," B. U. D. P. (1898), I, p. 46; Bodio, 
"Instruzione e delinquenza," in the "Cultura" (February, 1895). 

As an index to the wholesome influence of education, see the parallel move- 
ment of civil litigiousness and of crime, in Ferwglio, "Litigiosita e criminalita," in 
the "Reforme sociale" (25 May, 1896). 



182 DATA OF CRIMINAL STATISTICS [§ 122 

to kleptomania (mania for either direct or indirect theft). The 
religious idea, vanishing under the action of scientific truths, a 
void is made in the soul of contemporary generations, after the 
realization of the patriotic ideal. They encounter some snowy 
night the glacial breath of scepticism, which permits the free 
deployment of every immoral and criminal tendency. Only the 
great human ideal of the new generations at present prophesies 
the end of this night, and hence the end of this criminal epidemic 
to the moral conscience. In the new human civilization, which 
will succeed the bourgeoise civilization, as the latter succeeded 
feudalism, the conditions of existence will be assured to every 
man in return for moderate labor. And thus morality will be 
strengthened and elevated, for immorality develops where the 
struggle for existence is too painful (as the consequence of exhaust- 
ive toil) or too easy (as the consequence of idleness and para- 
sitism). Toil, socially regulated and rewarded, will be an effective 
preservative against crime and vice. They will cease to be epi- 
demic and will be restricted to isolated cases of acute pathology, 
when the new civilization will oblige every human being, except 
the infirm and children, to toil productively in some form or other 
whether manual or intellectual (and the separation between the 
two will always continue to decrease); and when it will assure 
every man, in return for his labor, an existence worthy of a human 
creature, and not the life of a slave or a beast of burden. But 
these relations between civilization and crime exceed the limits 
of statistical researches since they do not go back prior to 1800 
and therefore always reflect the period of bourgeoise civilization. 
We can at most take from the annual series of criminal statistics 
periods of crisis and of calm, which are reflected in the intensity 
and extension of delinquency. These abstracts of statistics we 
shall presently take up in studying the general movement of 
crime in the principal countries of Europe. 

§ 122. Numerical Increase in Crime Shown by Statistics. 

Aside from the general problem of the relations between civili- 
zation and crime (of which no solution can be given by statistics 
alone which until now apply to relatively short periods and be- 
cause such relations properly belong to historical sociology), there 
is a more rigorously statistical question connected with this prob- 
lem which should be examined. I mean the general interpreta- 
tion and sociological import attributed to the figures of statistics 



§ 122] CIVILIZATION AND CRIME 183 

which attest the numerical increase of crime in our own time. 
The idea has long since occurred to some observers of criminal 
statistics that the increase in the number of crimes should be 
attributed not to an increase of individual energies or tendencies 
but rather to the increasing number of occasions and external 
incentives due to a multiplication of legal relationships and of 
moveable property. Thus, for example, in 1828, on the occasion 
of a debate in which Peel, in the House of Commons declared 
that as civilization advanced property became less respected, 
Lucas observed that "the progress of civilization augmented 
the number of useful things and the cupidity, naturally excited, 
found more occasions of usurpation and hence more temptations. 
Growing civilization affords more things to be stolen, hence crimes 
should multiply. It is not, therefore, because property is more 
exposed to theft but because there are more properties exposed 
to theft. Furthermore, as the progress of civilization is only that 
of individual liberty it spreads the abuse with the use. To make 
a sane estimate of the morality of human liberty and of civiliza- 
tion, the extension of the abuse should be judged in comparison 
with the extension of the use." x More recently Jellinek in Ger- 
many and Messedaglia in Italy, without mentioning others, have 
expressed the same idea. 2 It was for this reason that I, in turn, 
in my "Studi sulla criminalita in Francia" 3 confronted the 
numerical increase of crimes and delicts not only with legislative 
variations, which change the material extension of the data by 
creating new forms of offenses and not only with the increase of 
population, — but also with the number of judicial police agents, 
who both increase the number of discovered offenses and give 
more frequent occasion for certain offenses, such as resistance 
and violence, and finally, with the increase of wealth and exchange- 
able commodities. For a more complete explanation and a more 
accurate interpretation of statistical data, this observation pos- 
sesses an incontestable and undisputed value. But more recently 
Poletti assigns it a much wider range. 4 In accord with my "Studi 

1 Lucas, in the "Bulletin of M. Ferussac" (September, 1828), p. 188, III. 

2 Jellinek, "Die sozial-etische Bedeutung von Recht, Unrecht und Strafe," 
(Vienna, 1878), p. 79. So even before him, Avi Lallemant, "Das deutsche Gauner- 
thum," II, 34, cited by Schaeffle, " Bau und Leben des socialen Kbrpers " ; Messe- 
daglia, "La statistica criminale dell' impero austriaco" (Venice, 1867), p. 13; 
"Aleuni argomenti di statistica teorica," "Archivio di statistica," V, 1. 

3 Published in 1881. 

' Poletti, "Del sentimento nella scienza del diritto penale" (Udine, 1882), p. 
79, 81. 



184 DATA OF CRIMINAL STATISTICS [§ 122 

sulla criminalita in Francia," he observed that in the period from 
1826 to 1878 crime increased from one hundred to two hundred 
and fifty-four, while in the same country, the imports had increased 
for the same period from one hundred to seven hundred, the ex- 
ports in about the same proportion and the national budget from 
one hundred to three hundred. Nor was that all. He further 
showed, always conformably to my book, the progression of the 
mutations of personalty and realty, of charitable institutions, of 
mutual aid societies, of agricultural production, of the consump- 
tion of wheat: he considered that this progression indicated "in 
the social activity of France" for this period (1826-1878) a devel- 
opment which found in the corresponding increase of the public 
revenues (from one hundred to three hundred) its most faithful 
total expression : and he drew from these comparisons the conclu- 
sion that "in French criminality in the period from 1826 to 1878 
there was no increase but a positive decrease." * In this apprecia- 
tion by Poletti, if we put aside the grain of truth contained in the 
primitive idea expressed by others before him, the rest lacks scien- 
tific accuracy in two particulars. The first is that the mathemat- 
ical expression of this idea is impossible: the second, that for this 
very reason practical applications of the idea are extravagant 
and arbitrary. The mathematical or even the merely precise 
expression of a comparison between criminal and economic activ- 
ity is impossible for the simple reason that if we could approxi- 
mately fix the first term of the equation by the number of offenses 
prosecuted and tried, we could not, as to the second, in view of 
the infinite variety of elements which compose it, give even an 
approximate total value. And again, as I have said elsewhere, 2 
only an arbitrary and inexact comparison can be made between 
the percentage of crime and that of certain forms of economic 
activity. What relation is there really between an increase of 
crime from one hundred and fifty -four per cent, and an increase 
of six hundred per cent, in commercial activities? Furthermore, 
as Tarde asks, 3 could there be a relation between the number of 
thefts and of sales or leases? 

1 See Poletti, "Del sentimento nella scienza del diritto penale," pp. 79-81. 

2 Ferri, "Soeialismo, psicologia e statistica nel diritto criminale," A. P., IV, t, 
1883, p. 235. 

' Tarde, "La statistique criminelle," in the R. P. (1883), p. 56, and "Crimi- 
nalite comparee" (Paris 1886). 



123] CIVILIZATION AND CRIME 



185 



§ 123. Actual Increase in Crime. 
For this reason the applications of this idea made by Poletti 
to criminality in France and Italy are arbitrary and extravagant. 
They are arbitrary because it is not proven that a certain per- 
centage of decrease or increase (even conceding that a comparison 
were possible) has the same value in the case of crimes as in the 
case of commerce, imports, or the consumption of foodstuffs. 
How can one say that "the social activity of France" (indeed so 
imperfectly represented) having increased in fifty years two 
hundred per cent, and the criminal activity only a hundred and 
fifty per cent, that therefore there results "a positive diminution" 
in French criminality? This is another verification of the bio- 
sociological law mentioned in the last chapter, according to which 
the most important vital elements undergo the slightest varia- 
tions, yet these variations have the greatest importance. In a 
social sense, therefore, I am of opinion that an increase of ten per 
cent, in crime (especially homicide and brigandage) has greater 
significance than an increase of thirty per cent, in the exporta- 
tion of grain or the receipts of the budget. Otherwise one might 
say, Tarde observes, that the comparison of the more frequent and 
dangerous immoralities of city life (which have developed re- 
markably) with the enormous number of recorded adulteries 
discloses a real progress in the chastity of women. Certainly 
business is more active but it is equally certain that we run greater 
risk now than fifty years ago of being robbed, cheated, or swin- 
dled. Further, if we pass from the objective criteria of crimes 
to the subjective criteria of criminals, it is my observation that 
in France, for example, while there were, from 1826 to 1830, one 
hundred and fifty-two persons in each hundred thousand charged 
with correctional delicts, — from 1875 to 1880 there were one hun- 
dred and seventy-four: This means that the increase of crime is 
not only numerical and absolute, but that it occurs proportionately 
to population. Retaining the primitive idea of Poletti's theory, that 
is affirming in the last analysis the necessity of a double criterion, 
the increasing population on one hand and the increasing activity 
in the surveillance of criminals on the other, the positive school 
has opened up an entirely new field of fertile observation by clas- 
sifying the factors of crime. I took occasion in my "Studi sulla 
criminalita in Francia" to collect in three natural groups all the 
various causes which determine delinquency. Prior to its pub- 



186 DATA OF CRIMINAL STATISTICS [§§ 124, 125 

lication they had been indicated only in a fragmentary and dis- 
orderly way, without any causal connection, as in the two chap- 
ters of Bentham, 1 in the writings on criminal statistics, and in 
the work of Lombroso. In the discussion of suicide (another 
phenomenon of social pathology), they have been grouped by 
Morselli into a better organized but still feebly classified series. 2 
Therefore, viewing the honest or dishonest actions of man as 
always the product of his physiological and psychical constitution 
and of the physical and social atmosphere in which he is born 
and lives, I have distinguished the following three catagories: 
anthropological factors or individual factors of crime; psychical 
factors; and social factors. 

§ 124. Anthropological Factors in Crime ; Organic Constitution of the 

Criminals. 

Anthropological factors inherent in the person of the criminal 
are the first coefficient of crime. Since a criminal, like other men, 
may be considered either as a separate individual (and thus con- 
sidered either physiologically or physically), or as a member of 
society and as such having various relations with other men, the 
anthropological factors of crime group themselves under three sub- 
divisions. To the first (organic constitution of the criminal) belong 
all the organic anomalies of cranium, brain, viscera, of sensibility 
and reflex activity, and of all bodily characteristics in general, such 
as peculiarities of physiognomy and tattooing. These have been 
brought to light by the numerous labors of criminal anthropology, 
and brilliantly collected and supplemented in the work of Lom- 
broso. They will assuredly be followed by new researches in 
greater number and with increasing fruitfulness. 

§ 126. Anthropologic Factors in Crime ; Psychical Constitution of the 

Criminal. 

To the second subdivision (psychical constitution of the crim- 
inal) belong all the anomalies of intelligence and sentiment, es- 

1 Bentham, "Principles of Legislation," Chap. IX, X, enumerated "the cir- 
cumstances which influence sensibility" and of which "account must be taken in 
matters of legislation" as: temperament, the basis of everything — health — 
strength — bodily imperfection — culture — intellectual faculties — strength 
of mind — perseverance — inclinations — ideas of honor — religious ideas and 
feelings of sympathy and antipathy — madness — financial conditions — sex — 
age — social class — education — customary occupation — climate — race — gov- 
ernment — religious profession. 

2 Morselli, "Suicidio" (Milan, 1879), p. 49. 



§ 126-129] CIVILIZATION AND CRIME 187 

pecially the social sense, and all the peculiarities of the literature 
and jargon of criminals. On all these points, sufficient data have 
already been collected, and will be more and more enriched after 
the preliminary development necessarily given to organic re- 
searches, for, in the genesis of crime, the moral temperament 
appropriate to delinquents is of the highest importance. 

§ 126. Anthropological Factors in Crime; Personal Characteristics of the 

Criminals. 

In the third subdivision of anthropological factors (personal 
characteristics of the criminal) are embraced, aside from the 
biological conditions of race, age, and sex, the biologico-social 
conditions, such as civil state, profession, domicile, social class, 
instruction, and education, which hitherto have been studied 
almost exclusively by persons concerned with criminal statistics. 

§ 127. Physical Factors in Crime. 
Then comes the series of physical factors (cosmo-telluric) of 
crime. These include the causes belonging to the physical environ- 
ment, all very efficient, as criminal statistics prove, in the produc- 
tion of different manifestations of crime. Such are climate, nature 
of the soil, succession of day and night, and seasons, the annual 
temperature, atmospheric conditions, and agricultural production. 

§ 128. Social Factors in Crime. 
Finally, there is the category of social factors of crime which 
result from the social environment in which the delinquent lives, 
such as: different density of population, the state of public and 
religious opinion, the constitution of the family, the educational 
system, alcoholism, the economic and political organization, 
organization of public administration, justice, and judicial police, 
and finally the civil and penal legislative system in general. These 
contain a multitude of latent causes which overlap, intervene, and 
combine in all of the least apparent functions of social life and 
which almost always escape the attention of theorists and prac- 
titioners and of criminologists and law-makers. 

§ 129. Classifications of the Factors in Crime. 

This classification of the factors of crime, which has been ac- 
cepted by the greater number of anthropologists and criminal 
sociologists, seems to me not only more complete and better 



188 DATA OF CRIMINAL STATISTICS [§ 130 

ordered than that of Bentham or Morselli, but' also more accurate 
than those which have since been proposed for the study of crime. 
I shall not speak of Lacassagne's classification which is funda- 
mentally identical with my own (published earlier than his) in 
which he considers the physico-chemical, biological (or individual), 
and social factors, which intervene in the production of crime. 
Yet it has been declared by Puglia * that our classification was 
taken bodily from the " Saggio critico sul diritto penale " of Bovio. 
And Colajanni later even went so far as to say that Bovio's classi- 
fication was even more complete. 2 Bovio's "Saggio critico" 
maintains, first of all, that penal law contains an intrinsic contra- 
diction because of the impossibility of establishing an absolute 
ratio between crime and punishment which are things of entirely 
different nature. This impossibility had before been shown by 
Conforti, Tissot, and Ellero. The opportunism of other classic 
criminologists, who have attempted an empirical solution of the 
problem, does not at all weaken this condemnation inflicted on 
penal law by metaphysical deduction itself. 

§ 130. Ratio of Civil and Penal Justice. 
It is asserted that penal justice is in inverse ratio to civil 
justice, an idea already developed by Filangieri throughout his 
work "Scienza della legislazione" and particularly in the conclu- 
sion of his third chapter which treats of criminal laws. It was 
Filangieri who wrote the eloquent phrase: "When the citizen is 
no longer protected by the sword of' justice he resorts to the poig- 
nard of the assassin." As early as 1861, Maine in his classic work 
on "Ancient Law" pointed out the more considerable extension 
of penal laws as a general trait of primitive peoples. 3 And further, 
even from the statistical point of view, de Candolle in 1830, and 
Zincone in 1872, in an obscure little work, accurately brought out 
the preventive influence of civil justice on crime. 4 In any event, 

1 Puglia, " Risorgimento e awenire della scienza criminale." 

2 Colajanni, "Sociologia criminale" (1887), II, 40. 

3 Maine, "Ancient Law," Chap. X. Carle makes the same observation of 
Germany in the Middle Ages in "La vita del diritto ne' suoi rapporti colla 
vita sociale" (Turin, 1880), p. 237; he always attributed the predominant de- 
velopment of penal disposition in Germanic law to the controlling idea of indi- 
vidualism, — an ingenious explanation, but one which needs to be supplemented 
by the idea of the primitive imperfection of the civil law. 

4 De Candolle, "Sur la statistique des delits," in the " Bibliotheque Univer- 
selle de Geneve" (1830); Zincone, "Dell' aumento dei reati" (Caserte, 1872), pp. 
50 el seq. See also Spencer, "Trop de lois" (published in 1853), in the "Essais de 
politique" (Paris, 1879), pp. 63 el seq. 



§ 131] i CIVILIZATION AND CRIME 189 

it is a fact that the historical evolution of crime occurs through 
a continuous substitution of civil in place of penal laws for the 
defense of individual and social rights. 

§ 131. Criticism of Colajanni's Classification of Crime. 

As to the triple cooperation of nature, history, and society with 
the "personal factor" in the determination of crime, which in 
Colajanni's opinion would be a more perfect classification of the 
factors of crime than mine, there is present an inexact conception 
that cloaks an outgrown idea, — a metaphysical idea, and con- 
sequently it has very little in common with my classification of 
criminal factors. Really, what is history and how does it deter- 
mine crime? History does not exist of itself and only acts as a 
biological condition of the hereditary, physiological, or psycho- 
logical dispositions of the individual; or as the social condition of 
customs, public opinion, family, economic, or political organiza- 
tion. Therefore the only influence which history can have on 
crime is like nature (anthropological and physical factors), or 
like society (social factors) . Of itself it is only the redundancy of 
syllogistic symmetry. And when they discourse on the "personal 
factor," i. e., individual free-will with the concurrence of the nat- 
ural factor employed by history and society in the determination 
of crime, who fails to see that the problem is left in the anti- 
quated metaphysical circle and that there is always the question 
of moral liberty of which the wings are more or less clipped? In 
conclusion, we always find ourselves confronted by the animism of 
which we have already spoken and in the name of which, Tarde, 
for example, in criticising my classification of the criminal factors 
declares "that the employment of organic potencies, the reali- 
zation of those virtualities which constitute the personal factor 
and which are in a measure susceptible of direction, depend, in 
crime or virtue, on the conscious and voluntary personality which 
has accentuated them for good or evil." l I repeat that thereby 
they intend to indicate the concurrence of the physico-psychical 
make-up of the individual, that is, the anthropological factors in 
the origin of crime (and in such case there is no reason to distin- 
guish the very factors which constitute the personality of the 
delinquent and which, being factors of the physical and social 
environment, are necessarily determined in accordance with the 

1 Tarde, "Le deuxieme congrea d'anthropologie criminelle," in R. S. (30 
November, 1889), p. 687. 



190 DATA OF CRIMINAL STATISTICS [§ 132 

laws of natural causality); or else (and this is what our critics 
really mean) it is only the question of a contraband free will. 1 
It is, therefore, inexact to say that the classification of criminal 
factors which I have proposed was borrowed bodily from Bovio, 
or that it needs to be supplemented by the joinder of "history" 
and the "personal factor." So true is this that Colajanni himself 
is forced to admit that "the value and efficiency of history and 
the personal factor can only with difficulty be directly illumi- 
nated . . . and hence the study of the factors of crime should be 
restricted to the physico-chemical, anthropological, and social." 2 
This is why Colajanni, in his first volume, after criticising all of 
the data of criminal anthropology with a great reserve of syllo- 
gisms and with inexcusable errors of fact, finally accepts the two 
most important conclusions, on atavism and on the classification 
of criminals that we had drawn from such data. And he does the 
same in his second volume where he criticises my classification of 
criminal factors at the start and finally "restricts his study" to 
the only factors that are enumerated in that classification. 

§ 132. Criticism of Aramburu's Classification of Crime. 

Finally, as germane to my classification of criminal factors, I 
will say only a word about the objection made me by de Aram- 
buru and others charging me with having confused the accessory 
with the principal, and the purely accidental causes with those 
which are really determinative. 3 That is an ancient distinction 
of the traditional philosophy which has no serious value. All of 
the necessary conditions in the determination of a phenomenon 
are the natural causes of such phenomenon, and there is no essen- 
tial difference but only a difference in degree between accessory 
and principal or between what is determinative and what is occa- 
sional. The heart is a principal organ and the vein an accessory, 
but both are absolutely necessary to the animal organism. With- 
out the determining occasion, an event does not occur notwith- 
standing all of the other causes which have preceded. The drop 
of water is occasional but without it a liquid would never have 
overflowed. 

1 See P., Ill, post. 

2 Colajanni, "Sociologia criminale," p. 43. 

3 De Aramburu, "La nueva eiencia penal" (Madrid, 1887), p. 115. I have 
replied to this in the preface to "Nuevos horizon tes del derecho y del procedi- 
miento penal" (Madrid, 1887), translated into Italian by Perez Oliva. 



§ 133] CIVILIZATION AND CRIME 191 

§ 133. Criticism of Tarde's Classification. 

I prefer, lastly, to make reply to the two more recent objec- 
tions of Tarde. The physical factors, he says, should not consti- 
tute a separate category since "they are active only when identified 
with anthropological or social factors. Climate, or the seasons, 
do not of themselves contribute in any way to the increase or 
decrease of the contingent of crime. Their action is limited to 
figuring in a number of very complex causes which modify the 
organic or social causes whose concurrence is necessary in the 
production of crime." And at a later point he says: "The 
more elevated an organism is, the more it escapes the servitude 
of physico-chemical excitations and even though it uses up 
all of the energy which it has stored, it acquires more and 
increasingly disposes of these excitations and freely directs 
them to its own ends." "Let us then eliminate physical factors 
by distributing them among the biological and social factors." l 
Leaving till the next part the question of this pretended direc- 
tion, which every superior organism claims that it can give to the 
physico-chemical energies which give it life, I reply that if this 
be true, then the social factors themselves only act with the bio- 
logical conditions of the delinquent. Poverty, morals, traditions, 
and the political order are of themselves impotent, like climate, 
if their influence does not affect a determinate human organism 
which shows either an honest or a criminal reaction. I shall 
not discuss another objection of Tarde that denies the influence 
of climate because, if the warm season in our hemisphere deter- 
mines an increase of personal attacks, Correhas demonstrated, on the 
other hand, that in Creole countries they increase in the cool season. 
This fact can only confirm the influence of climate and the seasons on 
crime. This influence is shown in different ways according to the 
different conditions of different organisms in different environ- 
ments, but which is none the less effective. As Corre has pointed 
out, the hot season in our countries acts as a stimulant because it 
is temperate; in tropical countries, on the contrary, it is depress- 
ing because excessive. This is why, in temperate zones, personal 
attacks, which are more directly dependant on thermal conditions, 
are more numerous in the hottest season while in the tropics they 
occur when the season is least hot. 2 Thus, the criticisms of Tarde 

1 Tarde, "Le deuxieme congres d'anthropologie criminelle,'' p. 687. 

2 Corre, "Le crime en pays Creoles" (Lyons, 1889), p. 117; he controverts those 



192 DATA OF CRIMINAL STATISTICS [§§ 134, 135 

have nothing solid or positive like the last, or else, if given all 
of their logical consequences, they would, contrary to his idea, 
terminate in the elimination not only of physical, but also of 
social factors, because neither operate of themselves directly, but 
only by the influence which they exert on the organism of the 
individual. 1 We, therefore, consider the classification of the 
factors of crime into anthropological, physical, and social as es- 
tablished, to be the only one which answers both to the reality 
of facts and to the necessities of the study. 

§ 134. Complexity of Origin of Crime. 

In connection with this classification there come to mind two 
basic observations on the general relations of the criminal move- 
ment and the practical effects which are obtainable in the defense 
of society against crime. The first is that in view of "the unex- 
pected bond noticed between the different natural agencies hith- 
erto regarded as independent," 2 we cannot obtain a sufficient 
natural reason for an isolated crime or for the entirety of crime 
unless we consider each factor separately as well as all together. 
Even if we isolate these factors for the purposes of study and 
reflection, yet in nature they always act together and form an in- 
dissoluble group, a fact which makes all of them more or less nec- 
essary in the origin of crime. This simple consideration suffices to 
show the utter inaccuracy of the contrary and one-sided ways of 
regarding crime, in which the classical school sees nothing but 
the "fiat" of the human will, while sentimental socialism looks 
at it as the exclusive product of the social environment. The 
latter imputes to the present "bourgeoise society" all the volun- 
tary evil influences, which the former charges to the mathematical 
point of individual free will. 3 

§ 136. Ratio of Productivity of Different Factors in Crime. 
The second observation is: If the three classes of criminal 
factors always concur in the determination of crime, their pro- 
ductive force is different, not so much in the absolute sense as 
relatively, varying in the various categories of delinquents. If it 

who attribute an exclusive influence to social factors in "l'Ethnographie cri- 
minelle" (Paris, 1894), pp. 47, 48. 

1 Such seems to be the cause of the contradiction which I have noted in the 
latest writings of Tarde, pp. 185, 186. 

1 Secchi, "L'unita della forza fisica" (Rome, 1864), Introd. 

' Ferri, "Socialismo e criminalita." 



§ 135] CIVILIZATION AND CRIME 193 

should be asked whether absolutely speaking the anthropological 
factors are more effective than the physical or social factors, the 
problem is insoluble, because badly stated. It would be the same 
as asking which, air or heart, contributed most to the life of a mam- 
mal, since if one or the other fails the combined effect disappears. 1 
If, however, we consider the different categories of delinquents, 
we may say that while physical factors exert an almost equal 
action on all, the anthropological factors prevail in the criminal- 
born, in the insane, or criminals by passion, and social factors 
control in the case of occasional criminals or of those by acquired 
habit. This shows, as I have said, the positive aspect of the 
problem of statistics on the movement of crime, which I explic- 
itly put in my "Studi sulla criminalita in Francia." When we 
watch the movement of crime for a fixed series of years in a given 
country with a general rhythm of increase and decrease, we cannot 
but think that it depends on analogous, constant, and accumu- 
lated variations of anthropological and physical factors. In fact, 
while the absolute figures of criminality are far from presenting 
the stability, so much exaggerated by Quetelet, yet the propor- 
tional figures for anthropological factors, considering the part 
played by differences of age, sex, and civil status, in the movement 
of crime, offer very slight differences even for long periods. As 
to the physical factors, if, as I have elsewhere remarked, we may 
explain the sharp oscillations which some of them undergo at 
determined epochs, it is nevertheless evident that neither climate, 
the disposition of the soil, atmospheric conditions, the succession 
of the seasons, nor the annual temperature have in the last fifty 
years been subject to so considerable and constant changes that 
they can be even remotely considered in the continual increase of 
criminality and the ever-rising tide of crime which we have noted 
in certain European countries. Therefore the social factors, these 

1 We should therefore consider as inexact Tarde's observation in "Bribes de 
statistique Americaine," where he says that the anthropological and physical fac- 
tors only exercise an impulsive action towards an indeterminate form of activity 
while the social factors direct that activity and are in consequence the true deter- 
minants. All that there is of truth in this idea, I had stated in advance of Tarde 
in my third edition, i. e. that the social medium gives the form to crime which has 
its basis in the anthropological factor. 

We may also say of the observation of a few other writers, to the effect that 
the social factors tend to predominance as civilization advances over the physical 
and anthropological, FcmilUe, "La psychologie du peuple frangais" (Paris, 1898), 
p. 22, that this assertion is exact if taken in a relative sense and without pretending 
to exclude the coaction of biological and telluric factors. 



194 DATA OF CRIMINAL STATISTICS [§ 135 

"other causes," as Tarde says, "more or less easy of extirpation 
but to which sufficient attention is not paid," are responsible for 
the general advance of criminality, and for this there are other 
reasons. First: The variations which have been or which can 
be verified in certain anthropological factors such as the different 
part played by age and sex in crime and the more or less restricted 
liberty of explosion permitted to anti-social tendencies, whether 
congenital or due to mental alienation, themselves depend upon 
social factors; for example on the institutions for the protection of 
abandoned children, on child labor, on the participation of women 
in external and commercial life, on the preventive and repressive 
precautions taken to isolate dangerous persons and so on. These 
variations are an indirect effect of these very social factors. 
Second; Social factors predominate in occasional delinquency and 
in acquired habitual crime, and as the latter furnish the largest 
contingent in the total of criminality, it is clear that the social 
factors contribute the greatest part in the rise and fall of crime in 
a long period of years. So true is this that, as we shall see, while 
the gravest misdeeds (particularly against the person, that is 
those which especially represent congenital crime or are caused 
by mental alienation) offer a really extraordinary rhythmic regu- 
larity with slight increase and decrease, — the general move- 
ment of delinquency takes its appearance from the less grave but 
more numerous offenses against property, persons, and public 
order, and from those which have rather an occasional character, 
which are, as it were, microbes of the criminal world and which 
more directly depend on social environment. If, therefore, social 
factors play the greatest part in the general increase or decrease 
of criminality, that is, the factors which can be modified and cor- 
rected more easily than the others by legislative action, we see 
on this point also another obvious benefit of the positive school; 
since this school, thanks to the data of criminal statistics, has shed 
light upon the practical side of the criminal problem. 1 

1 It is remarkable that since the expression of these words which were used 
already in my 2d edition (1884), Puglia should have been able to declare that ac- 
cording to me, "the changes in the social medium have but a very feeble and 
sometimes insignificant efficacy in the repression of criminal tendencies." Risor- 
gimento e avvenire della scienza criminale," p. 28. It is evident that the criti- 
cism is without any justification. 



CHAPTER III 

PERIODIC MOVEMENT OF CRIME 

General data on periodical movement of crime in Europe. 
§ 136. The Periodical Movement of Crime. 
After these preliminary remarks, 1 we must glance at the 
general data of the periodical movement of crime in the several 
countries of Europe, from which I have been able to draw the 
most complete abstracts of official statistics : these I have summed 
up in the numerical table and tableau found at the end of the 
volume. 2 As I have no intention of making any comparative 
statistics but only of noting the general advance of criminality, 
this data, not always comparable between one country and 
another, but homogeneous in each series of the same country, 
suffices to indicate certain facts, especially with the aid of the 
diagram. The general phenomenon, which it notes at the first 
glance, in the countries studied, is the relatively stationary con- 
dition of grave crimes and the constant increase of lesser crimes 
at the same time, especially in the countries where the statis- 
tical series are longest as France, England, and Belgium. No doubt 
this phenomenon is in large part due to the successive accumu- 
lation, in cases of petty delinquency, of violations of special laws 
which in every country have been built up on the primitive 
foundation of the criminal code; yet it is also, to a certain extent, 
an indication of a real transformation of criminal activity dur- 
ing the last century. This transformation, substituting fraud 
for violence, bourgeois offenses against property for the attacks 
on the person of the Middle Ages, has reached the point where 
it attenuates the intensity while it at the same time spreads the 
area of crime. This amounts to saying that the general char- 

1 In the Italian editions I have .more fully examined Italian statistics: they are 
reduced to the same proportions as those of other countries. 

2 For Prussia I have taken the figures given by Starke, "Verbrechen und Ver- 
brecher in Preussen," for Russia those of Tarnowsky, "La delinquenza et la vita 
sociale in Russia," in the Riv. Ital. Soc. (July, 1898), and A. A. C. (September, 
1898). 

195 



196 DATA OF CRIMINAL STATISTICS [§ 137 

acter of the evolution of crime in the last hundred years consists, 
in part, in the progressive substitution of forms of fraudulent 
for forms of violent crimes; and, in part, in the decrease or sta- 
tionary position of natural crime in comparison with the increase, 
— whether real (by real growth) or formal (by multiplication of 
special prohibitive laws) — which has occurred in legal delinquency 
of a conventional character. Another thing that is common to 
the countries studied is in that which is called high criminality 
("haute criminalite," — felony) while the serious attempts 
against property show a noteworthy decrease (in France, England, 
Belgium, Germany, and Ireland). On the contrary the serious 
attempts against the person show a more constant advance or 
remain stationary as in France and Belgium, or become more 
numerous, as in England and Germany where they have increased 
to an even greater degree. If this phenomenon, however, does 
correspond in the case of crimes against persons to real condi- 
tions of criminal activity and at the same time to the increase 
of population, — on the contrary, for crimes against property 
(not to mention the real transformation of violent crimes into 
tricky and fraudulent offenses occasioned by the considerable 
augmentation of moveable property), it is for the greater part 
only the apparent effect of an artificial displacement of judicial 
jurisdiction due to what is called the "correctionalization" of 
crimes. 

§ 137. Crime as Denounced. 

Let us now reach a summary view of the principal data 
furnished by criminal statistics of each country. It should be 
premised that in order to determine the physiognomy of the prog- 
ress of crime, the first and characteristic data is to be sought in 
the lines of the crimes brought into the district attorney's office. 
In reality, the lines of individuals condemned by varying degrees 
of jurisdiction, although they represent surer judicial data, have 
a less exact and less unquestioned value in a statistical sense. 
This is not because the number of persons tried and convicted 
(legal crime) does not represent all the crimes committed (real 
crime) or denounced (apparent crime) in the year in which they 
are tried. It is principally because this number is exposed to dis- 
turbing influences which may change its relation to actual crim- 
inality: while the latter is much closer related and much more 
dependent, in the annual periods and in the effective number, on 



§138] PERIODIC MOVEMENT OF CRIME 197 

the condition of apparent or denounced crime. It is true that 
in the figures of denounced crimes there may enter as a disturb- 
ing element a greater or a lesser tendency of the population to 
denounce criminal acts or acts believed to be such. Even if this 
tendency varies much in different nations and thus adds to the 
difficulty of international comparisons, especially in some crimes 

— it is nevertheless evident that in the same country it varies 
less from year to year than the activity and competence of the 
courts. 1 

§ 138. Periodical Growth of Crime. 

Now two conclusions which are evident spring from an exam- 
ination of the proportional figures for the general growth of 
crime in Italy. This criminality — until 1890 presenting a sym- 
metrical arrangement of quite regular periodic oscillations around 
a maximum, determined in 1880, — has continuously undergone 
a very considerable growth since 1890. This almost symmetrical 
rise and fall of Italian criminality with its period of about five 
years certainly does not indicate a constant law of periodical 
rhythm (in evidence of this it did not continue during the last 
five years); but still considering it as mere empirical and transi- 
tory data it is none the less interesting since it serves as an ex- 
planatory criterion of the second and more essential conclusion 
on the periodical movement of crime in Italy. It is even more 
interesting, in my opinion, because of the interpretation of which 
it is susceptible. There is an approximately constant law which 
we note in the crime of all countries whereby there is an alter- 
nation in the annual movement of crimes against property with 
the movement of those against the person: as the one increases 

— the other decreases. This is because the most efficient and 
most variable general factors (abundance of food and mildness 
of climate) which decrease attempts against property increase 
the number of violent and sexual crimes : Attacks on prop- 
erty being much more numerous than crimes against the per- 
son contribute more in fixing the level of annual delinquency. 2 

1 See Ferri, "Studi sulla criminalita. in Francia," in the volume "La negazione 
del libero arbitrio ed altri saggi" (Turin, 1900). 

2 Ferri, "Das Verbrechen in seiner Abhangigkeit von dem jam-lichen Tempera- 
turwechsel" (Berlin, 1882); "Variations thermometriques et criminalite," in the 
volume of essays, "Saggi" (Turin, 1900). One can understand that this statis- 
tical law of opposite movements in crimes against property and crimes against 
the person in consequence of abundance of crops and of annual temperature is 
not an absolute eternal law; it, like all of the laws of statistics and sociology, is 



198 DATA OF CRIMINAL STATISTICS [§ 139 

Thus, before and after 1880, the chief and principal causes were 
the periods of abundance or of economic crises and of annual vari- 
ations of temperature, which are grouped about the coldest winter 
and the agricultural crisis (indicated by the highest price of 
wheat) which occurred in 1880. In the following years we ob- 
serve that there was a mild mean temperature and abundant 
harvests; only to find again in 1886, and for several years, severer 
winters and an acute economic crisis. 1 

§ 139. Permanent Increase in Crime. 

The tendency or general direction of these particular oscilla- 
tions (which in 1892 seemed to move towards the increase rather 
than the decrease of crime) has effectively been fixed in the last 
ten years in the direction of a constant increase. We can demon- 
strate, and with convincing evidence in the longer series, 
that in the periodical movement of crime in every country of 
Europe, distinction should be made between more or less pro- 
longed particular oscillations of increase or decrease and the 
permanent direction of the general movement. The former de- 
pends on the annual disturbances of a particular factor, more 
controlling and more variable in the most numerous crimes, for 
example, success or failure of the crops, annual variations of 
temperature, and industrial or political crises (thus, the amnes- 
ties of 1876, 1878, 1893, 1895, etc., influenced the number of 
convicts in prison). The others are determined (eliminating the 
purely artificial class of new infractions created by new statutes) 
by the fundamental conditions, either physical or social, of every 
country, since, in the general lines of crime in every country, the 
artificial factors of judicial activity and legislative innovation 
act concurrently with natural factors. This is exactly why there 

merely relative to the epoch when observed and, hence, to the existing civiliza- 
tion. In a more advanced phase of civilization where every man will be assured 
really human conditions of life and where the sharp alternative of extreme misery 
and relative comfort will be suppressed, this very increase of attacks on life and 
virtue which are now almost always in compensation with the decrease of attacks 
on property, can itself be suppressed. I have never given any other effect, either 
theoretical or practical, to this law of statistics. 

1 Of this see the clear proofs in Rossi, "Influenza della temperatura e dell' 
alimentazione nel movimento della criminalita italiana," A. P. (1885), p. 501 
(with a chart), and "Actes du premier congres d'anthropologie criminelle" (Rome, 
(1886), p. 296, and in Fornasari, "La criminality e le vicende economiche d'ltalia 
dal 1873 al 1890" (Turin, 1894). The procurators in their inaugural addresses 
indicate these causes. See Ferri, "Relatione sui discorsi inaugurali," in the " Atti 
della commissione statistica giudiziale" (Rome, 1886), pp. 224 et seq. 



§ 140] PERIODIC MOVEMENT OF CRIME 199 

was so much discussion in Italy a few years ago on the ques- 
tion of the definition of crime. A further reason is that, especially 
on this point, the question has a range not merely theoretical but 
practical and controversial in the domain of science and politics. 

§ 140. Increase of Crime; Classicism and Positivism. 
In the debates between the classical and positive schools, 
credit has frequently been given to the classical school and its 
doctrinism for the increase of crime and for what Holtzendorff 
called "the bankruptcy of the penal system hither applied." 
In turn, the classical criminalists have tried to deny this increase 
and bankruptcy in order to avoid judgment of the social utility 
of their abstract theories by their effects. In the political domain 
where the prejudice still rules that the life of society in its ground- 
lines depends rather upon the artificial action of such or such 
a government than upon its natural factors, which for the great 
part are foreign and superior to such artificial action, — the 
increase of crime has often been asserted or denied according to 
the inspiration of official optimism or of the pessimism of the 
opposition. 1 Hence, it was only in 1889 when the fact could be 
no longer dissimulated that there was an official recognition in 
Italy of the increase of crime. I had been right in maintaining 
from the beginning that the diminutions observed from 1881 
to 1884 could not be taken as indicative of the amelioration of 
Italian criminality since it was only the extraordinary recrudes- 
cence of 1880 which made the less deplorable situation of the 
following years appear good. Of course, in a high fever a drop 
of a single degree of temperature is encouraging; yet it was an 
illusion to accept mere annual and transitory oscillations as a 
general and constant tendency. A glance at a few of the longer 

1 It is curious to observe how every once in a while such discussions are re- 
newed in all countries. Thus, in France after 1840, there was much controversy 
on whether there had been increase or decrease of delinquency since 1826. There 
were optimists like Dufau, Berenger, Berryat, Legoyt, who argued a decrease, 
and there were the so-called pessimists, but who were really unbiased observers, 
and these maintained that there was an increase. Of these were Metz, Dupin, 
Chassan, Mesnard, and Fayel who cites them in his essays, "Sur les progres de la 
criminalite en Prance," in the "Journal des economistes" (January, 1846). 

For Italy in 1864, see the same discussion cited by Carrara, "Opuscoli" Vol, 
425. 

In like manner a few years ago there was much discussion of crime in Eng- 
land, which as we shall presently see, tended to decrease. So also in Germany, 
where it continued to increase. See Bosco, "La delinquenza in alcuni Stati 
d'Europa," pp. 56-115. 



200 DATA OF CRIMINAL STATISTICS [§ 141 

series (for example, of delicts in France, England, and Belgium, 
of crimes and delicts in Prussia) suffices to show that the descend- 
ing oscillations, even when persistent for several consecutive 
years, do not prevent the ascending oscillations from beginning 
again in the following years, in spite of the illusory expectation 
of a lasting improvement, so often expressed, in their annual 
reports, by the ministers of justice on the very occasions of these 
passing oscillations. I shall not urge the very forcible indication 
of an inverse tendency to the increase of crime which is given by 
the higher definite figure of imprisoned convicts in Italy, nor 
shall I insist upon that other painful symptom common to Italy 
and other European countries, which is the constant proportional 
increase of delinquents who are under age. Only too soon have 
the facts come to my support, with the incessant increase from 
1886 to 1897 not only in denounced offenses, but in crimes brought 
to trial. 1 

If we take a look at the other European states we have the 
following comparative figures: 

§ 141. Comparative Tables. 

1826-28 to 1893-95 
' Causes tried as contraventions, — police 

regulations from 100 to 398 in 

France \ Delicts from 100 to 418 [ 70 

Crimes against the person from 100 to 93 years 

■ Crimes against property from 100 to 32 . 



Belgium 



Persons tried by tribunals for correctional- ) . 

ized crimes against the person from 100 to 109 I R 

Persons tried by tribunals for correctional- | 

ized crimes against property from 100 to 162 j 



18k0-k2 to 1893-95 

' Persons tried by tribunals for delicts from 100 to 310 

Persons tried by Assizes for crimes against in 

Belgium -j the person from 100 to 75 56 

Persons tried by Assizes for crimes against years 

I property from 100 to 19 . 

1 For the sole purpose that the reader may smile at the courtesy and intelli- 
gence of some of the adversaries of the positive school, I borrow from the "Re- 
vista penale" (Dec, 1884), p. 503 (and moreover it continues its criticisms with the 
same courtesy if with little seriousness at bottom), the following passage relative 
to the statistics of Italian crime for the period from 1879 to 1893; "And now 
that the neo-alchemists of penal science have doted on the famous 'rising tide of 
Italian criminality,' on the frightful increase of crimes in Italy. And to think that 
certain statistical assertions of the self-styled positive school were based on such sta- 
tistical inductions! May these incurable pessimists find here a lesson and make 
more serious inquiries before pursuing J their atavistic lucubrations." 



§141] 



PERIODIC MOVEMENT OF CRIME 



201 



England < 



1857-69 io 1893-95 
Persons tried "summarily" for delicts and 1 in 30 

contraventions f rom 10 o to 176 / years 

1835-37 to 1893-95 
Persons tried as criminals for crimes against 1 

the person " f rom 10 o to 141 I in 61 

Persons tried as criminals for crimes against | years 

property and against the currency from 100 to 52 



Ireland 



1864-66 to 1893-95 
"Persons tried "summarily" for delicts and 

contraventions from 100 to 87 

Persons tried as criminals for crimes against 

the person from 100 to 50 

Persons tried as criminals for crimes against 

property and against the currency from 100 to 52 . 



32 
years 



1854-56 to 1876-78 

{Prosecutions for contraventions and thefts ] in 

of wood from 100 to 132 > 25 
Prosecutions for crimes and delicts from 100 to 134 J yeara 

1881-84 to 1891-93 
Persons sentenced for crimes and delicts 

against public order from 100 to 126 

Persons sentenced for crimes and delicts 

against the person from 100 to 139 

Persons sentenced for crimes and delicts 

against property from 100 to 112 . 

Grimes of public officers are not included: these averaged 1620 convictions 
per year from 1882 to 1886, and 1535 convictions from 1889 to 1893. 



Germany 



12 
years 



1867-69 to 1893-95 

Persons convicted of crime from 100 to 116 1 in 29 

Cis-Leithan I Persons convicted of delicts from 100 to 620 / years 

Austria ] 1874-76 io 1891-95 

Persons convicted of contraventions, from 100 to 173 in 22 years 

1874 to 1894 
Persons convicted of crimes against the 

person from 100 to 245 

Russia ' { Persons convicted of crimes against prop- J- 11 

erty from 100 to 73 years 

Persons convicted of other delicts from 100 to 152 . 

1 For the thirty-three jurisdictions embraced in the Courts of Appeals of St. 
Petersburg, Moscow, Kazan, Saratov, Karkov, Odessa with about sixty-seven 
million inhabitants. This data has only an approximate value as showing the crim- 
inality of the thirty-three governments comprised. As Tarnowsky observes, 
Riv. Ital. Soe. (July, 1898), pp. 487 and 493, aside from the law of 1882 which trans- 
ferred burglary in uninhabited houses from the ordinary courts and tribunals to 
the peace magistrates, the figures of the convictions of the peace magistrates do 
not include all the cases tried before them. There is missing also all the decisions 
of the local tribunals of peasants; and, indeed, the rural population in Russia forms 



202 DATA OF CRIMINAL STATISTICS [§ 142 

1883-85 to 1891-98 

q j f Persons tried for delicts from 100 to 98 \ in 11 

\ Persons tried for contraventions from 100 to 114 / years 

§ 142. Increase in Contraventions and Increase in More Serious Crimes. 

The most constant general phenomenon shown by this data 
is always the very noticeable increase of the petty legal or con- 
traventional delinquency, together with stationary condition or 
slighter increase of the more serious natural criminality (against 
the person) . In the crimes against property there is either a great 
decrease (as in France, Belgium, England, and Russia) or a lesser 
increase (as in Germany). 2 It is, however, necessary to distin- 
guish, in this constant fact, the simple appearance from what 
truly corresponds with reality. On one hand the decrease of 
serious crimes against property is due merely to a change of 
jurisdiction, or, that is to say, to the correctionalization of crimes. 
Here the usual practice of magistrates (as in France and Italy 
prior to 1890) or the law itself (as in England in 1856 and 1879 — 
in Belgium in 1838 and 1849 — in Italy through the dispositions 
made for the application of the Code of 1890 which have sin- 
gularly restricted the functions of juries — in Russia through the 
laws of 1882 on burglary of uninhabited houses) substitute for 
the aleatory outcome of jury sentences, punishments less harsh 
but more certain, imposed by the judges of the ordinary tri- 
bunals. In crimes against the person, which are less suscepti- 
ble of correctionalization, we do not find the movement towards 
diminution very notable. In Belgium the continual increase 
of correctionalized crimes bears for the most part on crimes 
against property. Likewise in the great increase in the trivial 
legal delicts (not to mention the number of police agents which 
has also increased) a large part is attributable simply to the crea- 
tion of new delicts and contraventions by one law after another. 
Thus (and I cannot dwell on the proofs in detail), in France the 

about eighty per cent, of the total population. On criminality in Russia, see also 
Bosco, "La statistica giudica e l'instituto internazionale di stato a Pietroburgo," 
§ III, in the "Atti de commissione della statistica giudizia" (Rome, 1898. Sess. 
December, 1897), p. 270; Orchanshy, "Les criminels russes et la theorie de Lom- 
broso," in the A. P. (1898), p. 14. 

1 For Spain the statistics of 1894 are evidently erroneous and the later are 
unworthy of confidence; hence I stopped at 1893. 

2 On the increase of crime in Germany, see an article by von Mayr in the " AI1- 
gemeine Zeitung," Supplement (February, 1895), and "Revue penitentiaire" 
(1895), p. 436; Beunecke, " Statistic," in the Z. G. S. (1897), XVII, 737. 



§ 142] j PERIODIC MOVEMENT OF CRIME 203 

law of 1832 on violations of surveillance, the law of 1844 on de- 
licts relative to railways, the law of 1849 relative to the expulsion 
of foreign refugees, the law of 1873 on drunkenness, the law of 1874 
on the conscription of horses: in Germany, the laws for the pro- 
tection of workmen, laws relative to repose on holidays, etc., have 
contributed for record new contraventions and delicts. It is true, 
as Joly 1 remarks, that other laws since 1825 have suppressed other 
crimes or have reduced the number of cases through less rigorous 
provisions; yet it is evident that the new delicts give a much more 
considerable total than that of the few delicts which have been 
suppressed or diminished. And hence it cannot be denied (as 
Joly does deny) that in the total increase of French criminality, 
the artificial element due to new judicial provisions enters. Never- 
theless, in certain categories of the most frequent misdeeds, such 
as robbery, criminal and felonious assaults, a great intrinsic 
increase in France has really occurred in the last sixty years. Also 
in England the increase of delicts summarily tried by reason of 
the law of 1856 (to which corresponds the decrease in crime 
against property) is largely due, as Levy says, 2 to the new viola- 
tions introduced by a mass of local laws, especially the Education 
Act of 1873, against which more than forty thousand infrac- 
tions were recorded in 1878, more than sixty-five thousand in 
1886, and more than sixty-two thousand in 1894. Relative to this 
lesser delinquency in England (which is so numerous because it 
also includes violations similar to the "contraventions" of the 
Italian, French, Belgian, Austrian, Prussian, and Spanish sys- 
tems and this number is very considerable) it should be clearly 
noted that the increase of seventy-six per cent, in thirty years 
is due less to real and serious crimes than to trivial transgres- 
sions. This indicates a distinct difference between the advance 
of crime in England and its progress in Continental Europe. 

If we analyse the total of offenses in England in which there 
were summary trials, we find that the greatest increase occurs 
in the violations of laws against drunkenness (82,196 in 1861, 
189,697 in 1882, 183,221 in 1885, 165,139 in 1886) and in viola- 
tions of local laws, — while real delicts against the person (as- 
saults) and against property (stealing, larceny, malicious offenses) 
do not show so important an increment. On the contrary, in 

1 Joly, "La France criminelle," p. 13. 

2 Levi, "A Survey of Indictable and Summary Jurisdictional Offenses," in 
"Journal of Statistics of Sociology" (September, 1880), p. 424. 



204 DATA OF CRIMINAL STATISTICS [§ 142 

France true delicts from blows and wounds, or robbery, show a 
greater increase, without regard to legislative innovations. Con- 
sulting the statistical abstracts such as I have at present, we find: 

TABLE 

1861-63 to 1879-81 

p, / Persons tried "summarily" for assaults from 100 to 102 

\ For stealing, larceny, malicious offenses from 100 to 110 

{Affairs tried by the tribunals for blows and voluntary 
woundings from 100 to 134 
For larceny from 100 to 116 

1874-78 to 1889-93 
f Persons tried "summarily" for assaults (blows and 

England I wounds) from 100 to 79 

( For larceny from 100 to 116 

1871-75 to 1888-92 
Individuals tried by the correctional tribunals, for 

wounds and voluntary blows from 100 to 138 

For larceny from 100 to 121 

In accordance with the summaries given above, England would 
seem to show a decrease not only in the total of lesser delinquen- 
cies and more especially in the lesser delicts against the person 
but also a slighter increase in delicts against property than is 
found in France and the other continental countries. 1 This fact, 

1 An exception should be made of the Canton of Geneva, where also, thanks 
to the influence of many works of social preservation (especially for abandoned 
children), crime is diminishing. See Gu&noud, "La crimiualite a Geneve au XIX e 
siecle" (Geneva, 1891), pp. 34 et seq. 

To the decrease of crime in England, which Morrison (who does not distinguish 
between natural and legal crime) declares is neither so certain nor so general as 
others have claimed (and I had pointed it out already in my 3d edition in noting 
as well the increase of the graver offenses against the person, although it did not 
correspond with the increase in population), the attention of statisticians and 
sociologists has recently been turned. See Morrison, "Crime and its Causes," 
Chap. I; "Preface to the Criminal Sociology of E. Ferri" (London, 1895), pp. 6-7; 
"Lavoro e criminalita in Ingbilterra," S. P. (15 Jan. 1893), p. 43; " Delinquent e 
carceri in Inghilterra," id. (July, 1895), where Morrison finally makes distinction 
between slight criminality and serious crime. 

Grosvenor, "Statistics of the Abatement of Crime in England," J. S. S. (Sep- 
tember, 1890); Griffiths, "La lutte contre le crime en Angleterre," in the "Rev. 
peuit." (May, 1893); Fornasari, " La criminalita e la vicende economiche in Italia" 
(Turin, 1894), Chap. IV; Joly, "La diminution du crime en Angleterre," in the 
"Revue de Paris" (December, 1894); Troup, "Introduction to Criminal Statistics 
for 1883 (which inaugurated a new series of judicial statistics), (London, 1895), pp. 
71 et seq.; Tarde, "La diminution du crime en Angleterre," A. A. C. (March, 1895); 
Aschrott, "Strafen und Gefangnisswesen in England wahrend des letzten Jahr- 
zehnts," Z. G. S. (1896), p. 1; Bruni, "La diminuzione del delitto in Inghilterra," 



§ 142] PERIODIC MOVEMENT OF CRIME 205 

ever bearing in mind the increase of the more serious crimes against 
the person in England (contemporaneous with the great increase 
of population which has more than doubled in sixty-three years), 
tends to prove the beneficent power of English institutions against 
certain social factors of crime — abandoned infancy, pauperism, 
etc., — and particularly of the improvement in the condition of 
the laboring classes, 1 in spite of the development of economic 
activity, which certainly has not been less in England than in 
France or other European countries. All of this confirms our 
point of view on the factors of criminality and on the proper 
measures of social preservation, even in the existing economic 
phase of society and is contrary to Poletti's theory. The ascending 
movement of crime is a phenomenon shared by America also. 
An increase from one hundred to one hundred and twenty-eight 
in general crime has been observed in Mexico from 1871 to 1885, 
and in Brazil, at Buenos Aires, and in the United States. Al- 
though in the latter country it is difficult to obtain complete 
annual data which are reliable, there was, according to White, 
one convict for every one thousand three hundred and forty-two 
inhabitants in 1850; one for every one thousand six hundred and 
forty-seven in 1860; one for every one thousand one hundred and 
seventy-one in 1870; one for every eight hundred and fifty -five 

A. P. (1896), p. 166; Ferrero, "Le cronache di Newgate e la criminalita in Inghil- 
terra," id. (1897), p. 193; Bodio, "Sul movimento della delinquenza in Italia e con- 
ferenci internazionale," A. C. S. G. (Rome, 1898; Session of May, 1897), p. 195; 
1897, p. 203; 1895 (1st Session), p. 231; Rostand, "Pourquoi la criminalite monte 
en France et baisse en Angleterre"; Tarnowsky, "La diminuzione della criminalita 
in Inghilterra," in the "Giorn. del Min. di giust. Russo" (October, 1897); Gold- 
schmidt, "Statistique criminale anglaise pour 1896," in the "Rev. penit." (Aug., 
1898), p. 1134. As to France we observe, also, that in 1895 there was a decrease 
in both crimes and delicts. But, unfortunately, I do not think that this annual 
oscillation any more than those of 1850-59-60, 1869, 1877-78, 1882 and 1893 (and 
similar transitory years are found in the statistical series of every country) permit 
us to affirm that there has been an actual decrease of crime as the Minister of 
Justice ("garde des Sceaux") seems to believe in his "Rapport sur la Statistique 
criminelle en 1895," "Journal officiel" (Paris, 9 Nov., 1897), and as others think, 
among whom are: B&rard, "La criminalite en France en 1895," in the A. A. C. 
(1898); CrSmieux, "Administration de la justice criminelle en 1895," in the "Revue 
penitentiaire" (Dec. 1897, p. 1358); Yvernte, "La diminution de la criminalite 
en France," in the "Journal Societe Savante" (Paris, May, 1898), p. 152. 

1 Following Tugan-Baronowsky, "Die sozialen Wirkungen der Handelskrisen 
in England," in the " Archiv fur soziale Gesetzgebung und Statistik" (1898), p. 19, 
Bosco, "La delinquenza in alcuni Stati d'Europa," § IV, rightly infers and proves 
from statistics that the controlling influence in the decrease of English crime 
should be attributed to the better living conditions (material and, hence, moral) 
of the most numerous classes. 



206 DATA OF CRIMINAL STATISTICS [§ 143 

in 1880; and one for every seven hundred and fifty-seven in 1890. 
However, it appears that in about one-half of the area of the United 
States (according to the last census) it increased, while in the 
other half it decreased, particularly in relation to the increase of 
population. The same fact occurred in certain parts of Australia, 
as in New South Wales. 

§ 143. Increase of Population a Factor in the Increase of Crime. 

The essential rule in the increase of delinquency, both legal 
and natural, observable in continental Europe, belongs to dif- 
ferent causes from those which we have just mentioned and which 
are mere statistical appearances. Abstracting the different con- 
ditions of social environment, the most general and constant 
cause is the increase of population. Using the figures collected 
in the Introduction to the volume of 1883 on the movement of 
civil status in Italy, reproduced by Levasseur 1 and supplemented 
by more recent data, we find for the periods corresponding to those 
of criminality, the following proportional increases of population 
in the various countries (with the exception of Ireland, which on 
account of heavy emigration shows a decrease) : 

TABLE 

Italy from 1873 (27,165,553) to 1894 (30,818,248) increase 40% 

France from 1826 (31,858,937) to 1894 (38,380,000) increase 20% 

Belgium from 1840 ( 4,072,619) to 1894 ( 6,341,958) increase 57% 

Prussia from 1852 (21,046,984) to 1878 (26,614,428) increase 26 % 

Germany from 1882 (45,717,000) to 1893 (50,778,000) increase 10 % 

England from 1831 (13,896,797) to 1894 (30,060,763) increase 117% 

England from 1861 (20,066,224) to 1894 (30,060,763) increase 50% 

Ireland from 1861 ( 5,798,967) to 1894 ( 4,600,599) decrease 20% 

Cis-Leithan, Atjs- / 

tria \ from 1869 (20,217,531) to 1894 (24,649,193) increase 21 % 

Spain from 1883 (17,158,672) to 1892 (17,938,151) increase 4% 

This increase of population is a natural and inherent cause of 
the increase of crime by increasing the number of relations, of 
things, and of persons in a denser population on- the same territory 
and especially in urban centers. It should not be forgotten, how- 
ever, that in the first place the increase of population only oper- 
ates as a cause for the increase of crime when not neutralized wholly 
or partially by other influences, especially social, which anticipate 

1 Levasseur, "Statistique de la superficie et de la population des contrees de 
la terre," I part, B. I. I. S. (Rome, 1886), 1, 3; "Movimento della populazione in 
alcuni Stati d'Europa e d' America," id. (Rome), X 1, p. 1. 



§ 143] PERIODIC MOVEMENT OF CRIME 207 

or moderate crime. An example is England, where it seems that 
the increase of population is accompanied by an increase of 
crime, not when there is a normal increase of the population living 
on a definite area, but when the number of inhabitants suddenly 
increases through some rapid change in economic conditions 
(forms of labor) in a given territory. In the second place, as 
Rossi says, 1 we fall into inaccuracies when we are content to 
compare the percentage of increase of population with that of 
the increase of criminality. This is what Bodio does in his report 
on Italian delinquency from 1873 to 1883, when he concludes 
that in those eleven years, since population grew seven and a 
half per cent., "crime might have grown seven and a half per 
cent, in the same period without on that account being able to 
say that it had actually increased." 2 As the increase of popu- 
lation in Italy is solely due to the excess of births over deaths 
(emigration being much greater than immigration) births augment 
population by a contingent which adds nothing to crime, at least 
actively, in the first ten or fifteen years, while death removes indi- 
viduals of all ages, and mostly those of the age when man can com- 
mit and in fact does commit crime. 3 It is impossible here to enter 
into a detailed study of other countries and I shall content myself 
with noting a few significant facts shown by the graphical chart. 
We see there, for example, the same influence of the great famine 
of 1846-1847 on crimes against property in France and Belgium; 
the sharp oscillations of crime in Ireland reflecting the politico- 
social agitations in that country; the analogy in the progress of 
crime in France and Prussia where the period of ten years' 
calm preceding the war of 1870-1871 (remarkable in both coun- 
tries by an extraordinary decrease of statistical records), was suc- 
ceeded by a period of considerable and continuous increase of 

1 Rossi, "Le recenti statistiche giudiziarie penali italiane,'' A. P. (1889), X, 
293. 

2 Bodio, A. C. S. G. (Rome, 1886), p. 32, and to the same effect in subsequent 
annual reports. 

3 An application of this idea has been made by Mayr, "Rapporto della cri- 
minalita colla coniposizione della popolazione in Germania," in the A. Z. (Suppl., 
Dec, 1895). He maintains that the increase of crime in Germany after 1888 was 
due to the increase of births, which occurred regularly after the war of 1870, and, 
hence, to the greater number of minors of eighteen or more who were active in life 
from 1888 on. See "Rev. penit." (1898), p. 142. The increase of crime in Germany 
is, however, more the reflex of economic conditions, either from more acute crises 
increased congestion, greater number of women and children in industry, and the 
consequent direct or indirect degeneracy which is its inevitable effect. See Bosco, 
"La delinquenza in alcuni Stati d'Europa," § 5. 



208 DATA OF CRIMINAL STATISTICS [§ 143 

crimes which proceeded from the reaction of an unfavorable 
economic condition and an acute crisis, the effects of which are 
shown, for example, in France, Germany, and Italy, by an in- 
creased death rate. These facts in their salient lines demonstrate 
how closely crime depends on the entirety of its multiple factors. 
And now putting aside the detailed studies on some of the social 
factors of delinquency which are susceptible of a statistical expres- 
sion and of which I have made exposition in my "Studi sulla 
criminalita in Francia," such as the increase of police agents, the 
abundance or scarcity of the harvests of cereals and of wine, the 
progress of alcoholism, family relations, the increase of moveable 
property, the growth of civil justice, commercial and industrial 
crises, the rate of wages, the annual improvement in the general 
conditions of living and the like, in spite of the great spread of 
education and of institutions of providence and charity — we 
must leave these general data of criminal statistics in order to 
draw from them by induction some theoretical and practical con- 
clusions of criminal sociology. 



CHAPTER IV 

LAW OF CRIMINAL SATURATION 

Law of criminal saturation. Slight efficiency of punishment; historical, statisti- 
cal, and psychological proofs. 

§ 144. Law of Criminal Saturation. 

These general summaries show how crime, whether natural or 
legal, continues to increase in the aggregate with more or less 
of an annual variation which tends to accumulate, in a long 
period, into a series of real criminal waves. From this we see 
that the level of crime each year is determined by the different 
conditions of the physical and social environment combined with 
the congenital tendencies and accidental impulses of individuals, 
in accordance with a law, which, in analogy to the law of chem- 
istry, I have called the law of criminal saturation. As a given 
volume of water at a definite temperature will dissolve a fixed 
quantity of chemical substance and not an atom more or less; 
so in a given social environment with definite individual and 
physical conditions, a fixed number of delicts, no more and no 
less, can be committed. 1 

§ 146. Annual Criminal Variations. 

Our ignorance of a multitude of physical and psychical laws 
and of numberless concurrent circumstances of fact prevents us 
from forecasting with precision the level of criminality; yet it 
is none the less the necessary and inevitable effect of a given phys- 
ical and social environment. Statistics prove that the variations 
of this environment are always accompanied by relative and 
proportionate variations in criminality. In France, for example 
(and this observation applies to every country which has a long 

1 This' law of social saturation has recently been applied by Durkheim to the 
phenomenon of suicide of which he writes: "Every society has, at every moment of 
its history, a definite aptitude for suicide. The relative intensity of this aptitude 
is measured by taking the ratio between the total number of voluntary deaths and 
the population of both sexes and all ages. We shall call this numerical data the 
death rate by suicide appropriate to the society under observation." Durkheim, 
"Le suicide," p. 10. 

209 



210 DATA OF CRIMINAL STATISTICS [§ 145 

series of data), the figures of crimes against the person vary but 
little in sixty-two years. It is the same in England and in Bel- 
gium because the respective environments are more stable, and 
the congenital dispositions of individuals and the human passions 
cannot vary so often or so violently, unless there be meteoric or 
extraordinary social disturbances. I have been able to prove 
that the greatest variations in crimes against the person in France 
may be either at times of political revolution or in years when 
the summers have been hottest and when there has been the 
greatest consumption of meat, cereals, and wine, for example in 
the years of the great criminal increase of 1 84 9-1 85 2. l For 
lesser delicts of a more casual kind against the person I have 
demonstrated that assaults, for example, follow particularly in 
their annual oscillations the greater or lesser yield of the vintage, 
and also that in their monthly variations they show an increase 
in the months nearest the harvest, in spite of the constant de- 
crease of other crimes against the person after the month of 
June. On the other hand, the statistics of crimes against prop- 
erty, and especially of simple delicts, show strong oscillations by 
reason of the lesser stability of their special medium, that is, 
the economic situation, which is always, so to speak, in a state of 
unstable equilibrium, as in years of famine and poor crops, com- 
mercial, financial, and industrial crises, etc. The influence of 
the physical medium also makes itself felt; for I have proven 
elsewhere that crimes against property show sudden increases 
in years when the winter is severe and corresponding decreases 
in years when the temperature is milder. 2 This correspondence 
between the most general, powerful, and variable of the physical 
and social factors of crime and the most characteristic manifes- 
tations of crime, such as robberies, assaults, and rapes, is so close 

1 Ferri, "Socialismo e criminalita," Chap. II. 

2 "Das Verbrechen in seiner Abhangigkeit von dem jahrlichen Temperatur- 
wechsel"; "Variations thermometriques et criminalite." As to the influence of 
harvests and of the price of cereals on crimes against property, we should call 
attention (besides the well-known chart of Mayr, "Rapporto della criminalita 
colla compozione della popolazion in Germania," p. 557) to a diagram by May- 
hew and de Binlcy, "The Criminal Prisons of London" (London, 1863), p. 451, 
which compares the annual price of wheat and the number of delinquents in pro- 
portion to population from 1834 to 1849. A study of the principal categories of 
crime has been made from the same point of view from 1870 to 1886 by Fuld, 
"Der Einfluss der Lebensmittelpreise auf die Bewegung der strafbaren Handlun- 
gen" (Mayence, 1881), and by Rossi for Italy from 1875 to 1883, A. P. (1885), 
p. 501, and more fully by Fornasari, "La criminalita e la vicende economiche in 
Italia dal 1873 al 1890." 



§§ 146, 147] LAW OF CRIMINAL SATURATION 211 

and constant that in my researches on criminality in France, cover- 
ing fifty years, whenever I found some exceptional oscillation 
in these delicts, I foresaw at once that in the history of the same 
year there would be, for example, an agricultural or financial 
crisis or a political revolution, and, in the meteorological statis- 
tics, a colder winter, a hotter summer, and the like. With noth- 
ing but the plain line of a diagram of criminal statistics, I was 
able to reconstruct in their most salient traits the historical 
vicissitudes of a whole country, thus confirming the actuality 
of these laws of criminal saturation by psychological experiment. 

§ 146. Reflex and Complementary Crime. 
Further, it may be said that, as in chemistry, an exceptional 
supersaturation may occur through an increase of temperature 
of the solvent liquid, so, also, in criminal sociology, beyond the 
regular and constant saturation, there is observable at times an 
actual criminal supersaturation due to extraordinary conditions 
of the social environment. It should be observed first of all that 
the principal and typical delinquency has its reflex delinquency, 
since the increase of the graver or more frequent crimes of itself 
involves, as a natural consequence, a greater number of riots and 
outrages against public officers, and a greater number of per- 
juries, wrongs, violations of surveillance, and escapes. Add to this 
that certain crimes have complementary crimes which at first 
are the consequences of crime but in their turn become new 
stimulants of the crimes from which they result. Thus, when 
thefts are numerous more stolen property is bought, received, 
or hidden; when there are more homicides and assaults there is 
increased carrying of concealed weapons. When there are more 
adulteries, there are more insults and duels, and vice versa. 

§ 147. Criminal Supersaturation. 

There is also, in an exceptional and transitory way, actual 
criminal supersaturation, properly speaking. Ireland and Russia 
afford conspicuous examples, but the same fact occurs in all 
countries, especially in America during the periods of election. 
In France, in the period preceding and following the Coup d'Etat 
of 1851, the crime of concealing delinquents, which in every other 
four-year period from 1826 to 1881 did not exceed fifty, rose to 
the number of two hundred and thirty-nine in the four years 
(1850 to 1853, incl.). So, also, in Italy we note a remarkable 



212 DATA OF CRIMINAL STATISTICS [§ 14S 

increase of prosecutions for crimes against the safety of the State 
and public order in 1898 and 1899, clearly a reflection of the 
economic, political, and social crises which that country under- 
went. Once more, in the serious famine of 1847, the crime of 
stealing grain in France reached the total of forty-two in a single 
year, while in fifty-five other years, taken all together, it scarcely 
reached a total of seventy-five. Furthermore, it is a well-known 
fact that in years when provisions are dear and the winters hard, 
many thefts and petty crimes are committed in order to obtain 
food and shelter in prison, — a fact which is often confirmed 
by the Department of Justice. I have further observed in 
France that some other crimes against property, on the contrary, 
decrease in years of famine in consequence of an analogous 
psychological movement which entrains what may be called a 
statistical paradox. As the crop pests (ordium, phylloxera) are 
more effective than the severity of punishment in decreasing the 
number of assaults, so, too, is famine more effective than the 
bars or the dogs released in the prison yards in preventing 
the escape of convicts. In famine years, there are characteristic 
reductions due to the advantage to the convict in being harbored 
and fed by the State. A similar fact which gives a new psycho- 
logical confirmation to our remark is that in 1847, when there 
was an extraordinary increase of all crimes against property, there 
was a marked decrease only in crimes of theft and breach of trust 
committed by servants. This was precisely because if there was 
anything better than penalties to deter them it was the fear of 
losing their support by their master during the economic crisis. 1 
Chaussinand, confirming my observations, adds that in the face of 
this crisis there was a notable decrease in the number of resistances 
to arrest "because thieves and vagabonds then prefer to be arrested 
in order to avoid the misery which prevails outside the prisons." 2 

§ 148. Criminal Supersaturation and Regularity of Crime. 

The law of criminal supersaturation has two principal con- 
sequences in its bearing on criminal sociology. The first is the 

1 Here are some of trie figures: 

France (Court of Assize) 18U 18i5 18i6 18V? 

Crimes against property 3,767 3,396 3,581 4,235 

, Breach of trust by servants 136 128 168 104 

< Thefts by servants 1,001 874 924 896 

2 Chaussinand, "Etude sur la statistique criminelle en France" (Lyons, 1881)„ 
p. 18. 



§ 148] LAW OF CRIMINAL SATURATION 213 

inaccuracy of speaking of the mechanical regularity of criminal 
phenomena which (since Quetelet) has been much exaggerated. 
Thousands of times his famous dictum has been cited: "There 
is one tax which is paid each year more punctually than the 
others and it is the tax of crime." In consequence, there has 
developed a general belief in the possibility of calculating in 
advance how many individuals would steep their hands in the 
blood of their fellow-men, how many poisoners, how many forgers 
there would be, because "crimes are annually reproduced in 
equal number, with the same penalties and in the same propor- 
tions." 1 For example we hear it repeated by statisticians, that, 
from year to year crimes against the person vary at most by a 
twenty-fifth, and crimes against property, by a fiftieth, 2 or again, 
that there is a law whereby the variations of delict do not exceed 
one-tenth. 3 This opinion, which originated with Quetelet and 
the others because they observed only the advance of the most 
serious crimes and only during a very short series of years, has 
already been refuted in part by Maury himself, by Rhenisch, 4 
and more explicitly by Aberdare, 6 Mayr, 6 and Massedaglia. 7 
For, if the level of crime is determined in a necessary manner by 
physio-psychic conditions of population and by the conditions of 
the physical and social environment, how can it remain constant 
and unaltered notwithstanding continual and frequently con- 
siderable variations of these very conditions? There will be 
found a constant ratio between a given population living in a 
given environment and the number of crimes. This is what I 
call the law of criminal saturation. For this very reason, the 
contingent of crime will never be equal from one year to another. 
There will be as Massedaglia (and after him Poletti) has said, a 

1 QuHelet, "Du systeme social" (Paris, 1841), 1, I, § II, Chap. II; "Physique 
sociale," 2d ed. (Brussels, 1869), 1, IV, § 8. And among others, Buckle, "History 
of Civilization in England," I, p. 23, etc.; Wagner, "Die Gesetzmassigkeit in den 
scheinbar wiUkiirlichen menschlichen Handlungen" (Hamburg, 1864), p. 44. 

2 Maury, "Du mouvement moral de la societe," R. D. M. (September, 1860). 

3 Poletti, "Teoria della tutela penale" (1878), Cap. VI; Appendix to the sec- 
ond edition of Lombroso's "L'uomo delinquente." 

4 Rhenisch, in the "Zeitschrift fur Philosophie und philosophische Kritik," 
cited by Block, "Traite theorique et pratique de statistique," 2d ed., p. 119 
(Paris, 1886). 

6 Aberdare, "D delitto e la pena in Inghilterra," R. C. (1876), p. 204. 

6 Mayr, "La statistica e la vita sociale," 2d ed. (Turin, 1886), p. 554. 

7 Messedaglia, " La statistica della criminalita" (Rome, 1879), p. 44 and note 
3; and to the same effect, Minzloff, "Etudes sur la criminalite," P. P. (September, 
December, 1880). 



214 DATA OP CRIMINAL STATISTICS [§ 149 

dynamic but not a static regularity. In this sense we may admit 
the conclusion of Drobisch, that "all regularity shown by moral 
statistics in arbitrary human acts is not derived from a law of 
fate, a destiny which exacts blind submission and is accomplished 
by an irresistible force, but is the product of constant causes 
which are yet susceptible of modification." ' This is what we 
determinists maintain in the following declaration : on the one hand, 
human phenomena, and hence criminal phenomena, depend on 
natural causes but not through a necessity of nature, not through 
fatalism or predestination; on the other hand, it is possible to 
modify the effects by modifying the very causes. This is con- 
ceded by Quetelet himself where he says: "If we change the 
social order, we shall see an immediate variation of the facts 
which were produced in so constant a manner. Statisticians 
should find out whether these changes have been useful or harm- 
ful. These studies show at all events the importance of the mis- 
sion of the legislator and his share of responsibility in all the 
phenomena of the social order." 2 

§ 149. Criminal Supersaturation and Punishment. 

The second consequence of this law of criminal saturation 
(and it is of great theoretical and practical importance) is that 
it scientifically proves that punishments, in which until now, in 
spite of a few purely platonic declarations, the best remedies 
against crime have persistently been seen, have none of the 
efficacy attributed to them. Delicts increase and decrease through 
a sum of causes which are very different from the penalties so 
easily promulgated by legislators and applied by judges and 
jailors. History affords striking examples of this. In the corrupt 
society of the Roman Empire it was in vain that laws were en- 
acted to smite "gladio ultore et exquisitis poenis" 3 those guilty 
of celibacy, adultery, incest, and crimes against nature. Dion 
Cassius 4 says that in Rome alone as a consequence of the law of 
Septimus Severus more than three thousand prosecutions for 
adultery were immediately begun. Something quite different, 
however, was needful to cure the diseased condition of society, 

1 Drobisch, "Moralische Statistik und die menschliche Willensfreiheit." 

2 QuHelet, "Physique sociale," Book IV, Sec. Ill, § 8. Hence, Fuld, "Eiufluss 
der Kriminalstatistik," in the "Archivfur Strafrechtswissenschaft" (1885), wrong- 
fully reproaches the Italian positive school with following "the old mechanic 
theories of criminal statistics." 

3 Tit. IX, Lib. IX, Code. • Hist. Rom., LXXVI, 16. 



§ 149] LAW OF CRIMINAL SATURATION 215 

as is proved by the fact that the most drastic laws against the 
same crimes were reenacted down to the time of Justinian with- 
out result. Accordingly the lex Scatenia against infamous carnal 
crimes, Gibbon 1 tells us, "fell into desuetude with the lapse of 
years and by reason of the multitude of the guilty." But this 
example does not teach those who, for instance in France, would 
combat celibacy with only the fear of penalties. It is a fact that 
from the Middle Ages down to our days the softening of manners 
has in large part concurred in making less frequent in Europe 
the bloody assaults which were formerly numerous enough, in 
spite of the atrocious penalties of the times. Du Boys 2 chides 
Celtes for his simplicity, when, after making a chart of the fright- 
ful tortures of his time (a.d. 1400-1500) in Germany, he shows 
astonishment that these tortures failed to prevent the multi- 
plication of crime. Imperial Rome flattered itself that it would 
stifle Christianity with the most atrocious penalties, but, on the 
contrary, these tortures seemed to feed its source, which cer- 
tainly did not fear the rigor of the laws. In like manner Catholic 
Europe in the Middle Ages thought to extinguish religious reform 
by persecutions which were increased under the disguise of penal 
justice. The contrary effect, however, was obtained. If Prot- 
estantism has not taken deep root in France, Italy, and Spain, 
the reasons are ethnic and social, and it is not because of slaughter 
and massacres. The proof of this is that it has made no greater 
strides since penalties aimed at religious beliefs have been entirely 
taken away. 3 The spread of general education has caused the 

1 Gibbon, "Decline and Fall of the Roman Empire," Chap. XLIV. 

2 Du Boys, "Histoire du droit criminel des peuples modernes" (Paris, 1858), 
Vol. 2, Lib. Ill, Chap. XXVI, p. 613. It is enough to recall the vivisection of per- 
sons condemned to death in the sixteenth century of which Andreozzi has given 
instances in Tuscany, in his work: "Leggi penali degli antichi Cinesi" (Florence, 
1878), pp. 43 el seq. Also Romiti, "Catalogo ragionato del Museo anatomico di 
Siena" (Sienna, 1883), Introduction, pp. 8 el seq., and "Aneora sulT anatomia in 
Siena nel XV secolo," in the "Notizie anatomiche" (Sienna, 1883). 

3 In the light of the doctrine commonly called historical materialism, and 
which I think more exact to call economic determinism (according to which, moral, 
juridical, political, and social phenomena in general are determined, directly or 
indirectly, by the economic conditions of each society at each moment of its evolu- 
tion), one sees that the irrepressible expansion of the Christian movement, and 
afterwards of the Protestant Reformation, was determined, for Christianity, by 
the economic evolution which brought about the decline of servitude and which 
was, in consequence, an expansive force (superior to all the violence of a sangui- 
nary repression) for a new religion preaching the brotherhood of all men. In the 
same way, the Reformation movement was but a religious reflection of the economic 
emancipation of the bourgeois class in central Europe, and had, for the same 



216 DATA OF CRIMINAL STATISTICS [§ 150 

disappearance of the crimes of Black Art and Sorcery, notwith- 
standing that they withstood the most barbarous punishments, 
both in antiquity and in the Middle Ages. Preceding and follow- 
ing the crusades, the upheaval of economic conditions and the 
spirit of adventure in Germany in the sixteenth century resulted 
in an enormous increase in the number of vagabonds. "After the 
Thirty Years' War, this dreadful crisis was a plague, — ■ a crisis, 
which suspended, so to speak, all regular life in Germany. In 
spite of lash, brand, and gibbet, the number of vagabonds swelled 
every day and an ancient chronicler says there was fear lest the 
wood should be lacking to build gallows and the hemp to twist 
ropes." 1 It was in vain that the nose, the tongue, and the lips 
were cut for blasphemies, everywhere threatened and punished. 
In France from Louis IX to Louis XV, blasphemies abounded, 
but now, on the contrary, they steadily diminish in spite of 
impunity in civilized countries. Yet where coarseness of language 
persists, the law can do nothing, even when it does not fall into 
disuse. 2 Mittermayer 3 remarks that, if in England and Scotland 
there are less false testimonies, less perjuries, less riots and resist- 
ances than in Ireland and on the continent of Europe, it is largely 
due to the difference of national character, which should be the 
principal element of criminal life by reason of its hereditary and 
incessant influence both on individuals and on institutions. Even 
without recourse to statistics, therefore, we know that delicts 
and penalties move in different spheres, which are excentric, 
so to speak, to each other. But when statistics in addition come 
to confirm the teachings of history, there can be no further doubt 
of the almost complete inadequacy of punishments against crimes. 

§ 150. Legislative Repression and the Increase in Crime. 

We may look to statistics for a striking proof of this truth by 
studying the course of repression in France during sixty-six years, 
as I have studied it in my "Studi," and which I shall complete 

reason, an expansive force that could not be overcome by persecutions or con- 
demnations. The same phenomenon is going on under our eyes with respect to 
socialism which represents the economic emancipation of the proletariat and a 
higher phase of economic and, hence, of moral and social evolution. 

1 Reich, "L'evoluzione penitenziaria in Sassonia," reviewed by Riviere in the 
"Rev. penit." (1896), p. 609. 

2 As has been seen in Tuscany until 1890 where the penalties of Article 136 
were scarcely ever inflicted. 

8 Mittermayer, "Traite de la procedure criminelle en Angleterre, en Ecosse et 
dans l'Amerique du Nord" (Paris, 1868), § 4, p. 53. 



§ 151] LAW OF CRIMINAL SATURATION 217 

with the aid of data relating to these last years. When repres- 
sion of crimes is spoken of, we should first of all distinguish the 
repression which depends on the general character of the penal 
legislation, animated by more or less severity, and that which is 
manifested in the application of the law in the work of judges 
who, more or less rigorously, fulfill the social function of its ad- 
ministration. As to legislation, it is certainly not to any decrease 
in the penalties that one may attribute the increase of crime 
in France. The legislative variations which have occurred in that 
country, especially in 1832 and 1863, with the revisions of the 
Penal Code, have introduced only partial moderations of penal- 
ties. This was done with the intent (effective according to the 
annual reports of criminal statistics) of strengthening judicial 
repression by facilitating the infliction of less excessive punish- 
ments, in virtue of the constant psychological law which makes 
the pronouncing of an excessive sentence repulsive even to judges 
themselves. It is well known that if there is a Penal Code in 
Europe which does not sin by excess of indulgence, it is the French, 
which so strongly retains the severity of the Napoleonic epoch in 
which it was promulgated; without considering that in certain 
crimes (such as violations and attempts on chastity which never- 
theless show an extraordinary increase in France) the penalties 
have been increased by successive laws. The same is true of 
blackmail which becomes more and more frequent, as Joly l 
observes, in spite of the more severe penalties established by 
the law of 1863. 

§ 151. Judicial Repression and the Increase in Crime. 
The question, therefore, leads to judicial repression, whose 
general movement in the last half-century requires consideration, 
since it is this movement which obviously exerts, in the sphere 
of the penal system, the most efficacious action on criminality. 
For laws exert a real action only when applied with more or less 
rigor, since in the social classes which furnish the largest con- 
tingent of crime, the laws are unknown before their practical 
application. And the truly defensive function, which specially 
anticipates the repetition of crimes by the same delinquent, 
depends upon the application of the laws in practice. Hence, 
criminal sociology concedes little importance to the arguments, 
which many theoretical jurists base solely on a psychological 
i Joly, "Le crime," p. 122. 



218 DATA OF CRIMINAL STATISTICS [§ 152 

error when they suppose that the delinquent classes are interested 
in the revision of a penal code, just as the least numerous and 
best educated classes of society might do. It is well in this con- 
nection to recall, also, the error of those who, like Garofalo for 
example, think that the abolition of the death penalty would 
produce regrettable consequences, not so much in itself but be- 
cause the delinquent classes would know of it. 1 They fail to 
perceive that murderers pay no attention to statutes as printed 
but consider merely whether the judges condemn to death and 
above all, whether the hangmen can really execute their sentences. 
Now such a result has not happened in Italy for many years, 
although capital punishment was provided for in the Code. 
Experience has now shown once more that criminal phenomena 
are independent of penal laws; for, we have seen that in Italy 
the sole crime that has actually decreased in late years is murder, 
for which the punishment of death was abolished by law in 1890. 

§ 162. Severity and Leniency in Judicial Repression. 

The greater or lesser severity in judicial repression is the result 
of two elements: 1st, the number of persons aquitted in propor- 
tion to the number of persons charged with crime. 2d, the dif- 
ferent proportions of grave penalties compared with the total 
number of persons sentenced. In fact, in an abstract way, the 
percentage of acquittals should not indicate more nor less severity 
in repression, since conviction or acquittal should be nothing but 
a simple declaration of certainty and hence only reflect the greater 
or less value of the evidence adduced. In reality it must be 
conceded that the increase in the percentage of persons convicted 
is inseparably related to the severity of the judges, especially 
the ordinary judges who exhibit this severity either in showing 
themselves less scrupulous in weighing evidence or more disposed 
to admit aggravating circumstances, and hence the heaviest 
penalties. An example of this is the extreme rarity of acquit- 
tals in trials for resisting arrest. Of these two elements, the first 
is certainly the more important on account of the psychological 
law that man in punishment, as in any kind of pain, is restrained 
more by the certainty than by the gravity. This is why even the 
classical criminalists have rightly maintained that a mild but 
certain penalty has greater efficacy than an atrocious punish- 
ment, which leaves a chance of escape. It is, nevertheless, true 
1 Garofalo, "Contro la corrente" (Naples, 1888). 



§152] 



LAW OF CRIMINAL SATURATION 



219 



that they carried this theory to excess in trying to obtain for all 
crimes without distinction (even for those committed by born 
and habitual criminals) a moderation and shortening of the con- 
tinuous and excessive punishments without striving also to ob- 
tain a greater certainty through reforms of procedure and judicial 
regulation. 1 The phenomenon in the proportion of acquittals 

Now, to see how these two factors behave in relation to general criminality: 
I began by dividing, in the case of France, the series 1826-1895 into periods of five 
years, rejecting the two years 1870-71 as abnormal on account of the war, and 
ending the ninth period with 1869 and beginning again from 1871, because that 
year inaugurated a new era of political and social organization and could not be 
compared from the judicial standpoint with the preceding years. 

After the determination, for each period, of the total number of persons tried 
and acquitted by the Courts of Assizes and by the Correctional Tribunals, I found 
the following proportions: 





Proportion of acquittals to 


every 






100 accused 




France 










Assizes 


Correctional Tribunals 


Total 


I. 1826-30 


39 


31 


43 


II. 1831-35 


42 


28 


30 


III. 1836-40 


35 


22 


23 


IV. 1841-45 


32 


18 


19 


V. 1846-50 


26 


16 


17 


VI. 1851-55 


28 


12 


13 


VII. 1856-60 


24 


10 


7 


VIII. 1861-65 


24 


9 


6 


IX. 1866-69 


23 


17 


8 


X. 1872-76 


20 


6 


6 


XI. 1877-81 


23 


5 


6 


XII. 1882-86 


27 


6 


6 


XIII. 1887-91 


29 


5 


6 


XIV. 1892-95 


30 


5 


6 



From this table it is clearly evident that there is a continual increase in the 
proportionate number of acquittals as well in the Assizes (except for the last de- 
cades) as for the ordinary Tribunals. This may be due to the fact that the magis- 
trates begin the prosecutions with greater care, but it in any event indicates an 
incontestable tendency towards greater judicial severity (which nevertheless has 
not prevented the constant growth of criminality). For this constant decrease in 
the indulgence of judges, reasons certainly are at hand, — first of all, in the personal 
tendencies of the judges chosen in different ways and differently disposed; then 
in the political revolutions which always have as their effect, as Quetelet remarks, 
the temporary weakening of repression only to make it more severe (as is seen in 
periods V and X after 1848-52 and 1870-71); and finally, in legislative changes. 
We observe in the figures for the Assizes, for the Tribunals, and in the total a marked 
decrease for the period III due to the law of 1832, which reduced certain penalties 
and introduced for the first time general extenuating circumstances (unconscious 
recognition of the categories of delinquents and thereby easily lending itself to 
abuse) and aided convictions. On the one hand, the disinclination of judges to 



220 DATA OF CRIMINAL STATISTICS [§ 152 

is repeated .in a similar phenomenon, which, while it relates to 

the certainty of evidence and to the discovery of the authors 

pronounce excessive sentences was obviated; on the other hand, in the presence 
of a law which reduced penalties, there arose spontaneously in the judges a psy- 
chological tendency to offset this moderation by a greater severity; this seems to 
be reproduced in period VIII, perhaps by an analogous effect of the law of 13 May, 
1863 (revision of the Code), and for the Tribunals by reason of the law of 20 May, 
1863, on the summary prosecution ("instruction immediate") of flagrant delicts. 
Perhaps one may further charge the most striking variations of this table, in the 
case of the Assizes, to the various laws respecting the jury, — laws which either 
on account of the number of votes necessary for conviction, or on account of the 
different ways of selecting the jury, should render acquittals more or less easy, as 
QuUelel, "Physique sociale," §8, Sec. 3, lib. 4; and BSrenger, "De la repression 
penale," I, 258, make the Minister of Justice ("garde des Sceaux") observe in his 
report on the statistics for 1848. Thus, for example, in the Assizes, we see that the 
high figures of acquittals in period I, due in part to the Revolution of 1830, but in 
greater measure due to the law of 2 May, 1827, which substituted general for re- 
stricted jury lists, reaches the maximum in period II, after the law of 4 March, 
1831, had increased the number of votes necessary for conviction from 7 to 8: 
it diminishes, on the contrary, in period III by reason of the law of 9 September, 
1835, which restored 7 as the number of votes necessary for conviction. In period 
V, the number of acquittals increases whether because of the Revolution of 1848 
or the decree of 6 March, 1848, which increased the number of votes to 8; this it 
is true by the decree of 18 October of the same year: and with this latter there 
cooperated the decree of 7 August of that year, which enlarged the jury lists on the 
basis of the political electorate and led to the formation of less severe juries since the 
jury was not preferentially drawn from the social classes which were most interested 
in and most inclined to rigorous penalties. In like manner, the marked decrease of 
period VI was brought about, aside from the strictness inspired and imposed by 
the imperial government, by the law of 4 June, 1853, which restricted the jury 
lists: and it was probably the same in period X after 1872 in consequence of the 
establishment of a strict government after the revolution and as a result of the 
law of 21 November, 1872, which again restricted the jury lists, extended by a prior 
law of 1871. 

These observations, published by me in my "Studi sulla criminalita in Fran- 
cia dal 1824 al 1878" are found almost literally in the official report of the Min- 
ister of Justice at the beginning of the recapitulatory work: "La Justice en France 
de 1826 a 1880" (Paris, 1882), p. 37. 

Tarde in a chapter of " Criminalite comparee," where he sketches a psychological 
analysis on the "Degre de conviction juridiciaire" required for a conviction, — a 
degree which changes between juries and judges, between judges and tribunals, 
— says that he has never seen this question treated by any one, not even by the 
Italian positivists (p. 124). 

I may be permitted to remark that these observations and researches which 
we have just seen on the annual proportions of acquittals give some indications 
on that same question and not only from the psychological but also from the so- 
ciological point of view. See also Yvernes, "Le crime et le criminel devant le jury," 
J. S. S. (Paris, 1894), pp. 325 et. seq. 

In my Italian editions I made as full a statistical examination as could be 
made from the figures for Italy. See the 4th edition, pp. 359-362. We can on 
that account reach only a negative conclusion which is as follows: a constant and 
important decrease of repression has not, in our country, responded to the strong 
oscillations and to the general increase in the number of delicts, which could 
have shown a direct connection between delinquency and punishment. 



§ 153] LAW OF CRIMINAL SATURATION 221 

of misdeeds, is yet an important element in the effectiveness of 
punishments in that it is related to that hope of impunity which 
weakens all penalties and which therefore indicates a greater or 
lesser efficacy in the ratio which the increase or decrease in the 
number of undiscovered criminals and criminals released for 
want of proof bears to the total number of misdeeds denounced 
and discovered. 

§ 163. Unpunished Crimes as a Cause of Increase in Crime. 
First of all, there is a whole series of data that statistics cannot 
in any way verify but which, nevertheless, is of great importance, 
since it cooperates in enhancing the hope of impunity. This is 
the number of crimes which are not discovered. However, the 
influence which this factor possesses to provoke new crimes in 
spite of the penalties provided in the codes is exclusively exerted 
on individuals who have already committed crime. When a 
crime is discovered and the guilty person remains unknown, or 
when his guilt is not proven, the resulting effect is of infinitely 
more consequence in paralyzing the efficacy of punishment, since 
it reaches all who have knowledge of the discovery of the crime. 
It may be asserted that when it is notorious that a grave crime 
has been committed and that its author is unknown, this has 
infinitely greater influence in tempting and provoking persons 
already predisposed to crime than the knowledge of daily con- 
victions has to deter them. In reality, punishment, whatever 
you make of it, strikes but a small minority of the delinquents. 1 
Even disregarding undiscovered crimes, if one sums up only the 
denounced crimes of which the authors remain unknown or be- 
cause of insufficient proof benefit by an "ordonnance de non- 
lieu" and the number of defendants tried and acquitted for lack 

1 We find the same results for France; and this in studying an even larger period. 

This shows a growth in the number of unknown perpetrators and a decrease 
in cases of lack of proof; and, hence, a movement which is in no way proportion- 
ate to the almost four-fold number of prosecutions which fail annually. It shows, 
also, a new confirmation of the absence of causal relation between the efficacy of 
penal prosecutions and the drift of criminality. 

It is strange that Tarde in a study on unpunished delicts in the "Essais et 
melanges sociologiques " (Lyons, 1895), should have given only the effective fig- 
ures for delicts of which the criminals remained unknown or have been discharged 
for lack of sufficient proof, without showing the percentage in relation to the total 
figures of delicts annually denounced, the total of which is increased in other ways. 
Had he made these calculations his lamentations would have had no basis in sta- 
tistics or in facts; and Bosco, usually so discreet, would not so blindly have trusted 
him. Bosco, " La statistics civile penale e l'instituto internationale a Pietroburgo," 



222 



DATA OF CRIMINAL STATISTICS 



[§153 



of evidence or by reason of a statute of limitations (prescription) 
or by the nullity of the penal action (reversal on appeal), and the 
number of pardons and amnesties, it will be found, as I said in 
the Commission of Judicial Statistics (and it has been vainly dis- 
puted), that sixty-five per cent, of discovered delicts remain un- 
punished. 1 Since this condition, which in the end paralyzes even 
the feeble intimidative power of punishment, is constant and inevi- 
table in all countries, let us see whether it has sufficiently domi- 
nated in the last decade that we may find in it one of the reasons for 
the increase of criminality. We note for Italy that the proportion 
of delinquents and persons discharged for want of sufficient evi- 
dence was rather on the decline from 1880 to 1895, while, on the 
contrary, crime continued to increase. It thus showed that it is, 
even from this point of view, independent of the greater or lesser 
efficacy of the prosecutions, because it depends on anthropologi- 
cal, physical, and social factors which, aside from repression, 
determine its progress each year. Now take up in the case of 
France the second element of judicial repression, i. e., the propor- 
tion of persons sentenced to the heaviest penalties, in relation 

pp. 288-289. See also Tarde, "Les transformations de l'impunite," A. A. C. 
(November, 1898). 



France. — Perpetrators unknown or not sufficient indications. 




AFFAIRS SENT TO THE ARCHIVES 




(by the Trib. publ.) or ending in an "ordonnance de 




non-lieu" (Cabinet d'Instr.) all prosecutions ended 


Yearly Averages 


because of 




Unknown perpetrators 


Insufficient proofs 




percentage 


percentage 


1831-1835 


10.7 


8.6 


1836-1840 


10.0 


8.1 


1841-1845 


9.9 


7.9 


1846-1850 


11.1 


7.1 


1851-1855 


11.6 


6.9 


1856-1860 


11.6 


6.8 


1861-1865 


11.8 


7.5 


1866-1870 


12.2 


8.2 


1871-1875 


13.1 


7.8 


1876-1880 


13.3 


7.6 


1881-1885 


14.8 


5.8 


1886-1890 


16.4 


5.0 


1891-1895 


16.8 


4.8 



1 A. C. S. (1894), p. 186. 



§153] 



LAW OF CRIMINAL SATURATION 



223 



to the total number of convictions. I have kept track, in the 
Courts of Assize, of the death sentences, and the sentences to 
hard labor and solitary confinement, since the other persons 
sentenced are either minors sent to a house of correction or 
prison with simple correctional penalties, or fine. 1 This stronger 



1 


SENTENCED IN THE ASSIZES 

(After argument) 


SENTENCED TO PRISON 
BY THE TRIBUNALS 


France 


to death 


to hard labor 
or solitary con- 
finement 


I. 1826-30 
II. 1831-35 

III. 1836-40 

IV. 1841-45 
V. 1846-50 

VI. 1851-55 

VII. 1856-60 

VIII. 1861-65 

IX. 1866-69 

X. 1872-76 

XI. 1877-81 

XII. 1882-86 

XIII. 1887-91 

XIV. 1892-95 


per cent. 
2.5 
1.5 
0.7 
1.0 
1.0 
1.1 
1.0 
0.6 
0.5 
0.7 
0.7 
1.0 
1.0 
1.0 


per cent. 
38 
42 
37 
40 
39 
48 
49 
48 
47 
49 
50 
40 
48 
48 


per cent. 
61 
65 
65 
61 
62 
61 
61 
64 
68 
66 
66 
65 
60 
58 



If this table does not show (as might have been expected) so striking an in- 
crease of severity as is shown in the proportion of acquittals, it nevertheless proves 
that even in relation to the severity of punishment, repression has not at all 
diminished. We even observe that, in the Court of Assize (excluding the first period 
since it was before the general revision of the Code of the law of 1832), while cap- 
ital sentences show a decrease in the later periods as compared with the earlier 
(and this is largely due to the laws of 1832, 1848, etc., which reduced the number 
of cases involving the death penalty) and at the same time show an increase after 
period VIII, sentences to hard labor and to reclusion (imprisonment) show a steady 
increase after period II, and especially from 1851. So, also, in the Tribunals, 
save for a few oscillations as in periods XIII and XIV, one observes, after 1860, 
a steady increase in the heavier sentences. 

That this continual predominance of heavier penalties, both in the Tribunals 
and in the Assizes, really manifests a greater severity of the judges, is demonstrated 
by calling attention to the fact that there would otherwise have been, at the same 
time, an increase in the most serious delicts; and this is not the case since, quite 
on the contrary, we observe in France a general decrease in crimes against the 
person (except in criminal assaults against children) and especially in crimes 
against property. This helps to explain in part the reduction in capital convic- 
tions which occurred except in the last three periods. 

Further, we find another eloquent proof of this severity in the similar move- 
ment of the statistics of acquittals in relation to those of the heavier sentences since 



£24 DATA OF CRIMINAL STATISTICS [§ 153 

proportion of heavy penalties occurs notwithstanding the con- 
tinual increase in the admission of extenuating circumstances, 
which, in the Court of Assize, increased from fifty-nine per cent, 
in 1833 to seventy-three per cent, in 1886 and, in the correc- 
tional Tribunals from fifty-four per cent, in 1851 to sixty-five per 
cent, in 1886. Furthermore, the number of trials in the Assizes 
for resisting arrest has steadily decreased, falling from a yearly 
average of six hundred and forty-seven in the period 1826-1830, 
to two hundred and sixty-six in 1882-1886, and one hundred and 
forty-three in 1891-1895. Finally, we find in the five years im- 
mediately following the establishment of the new Penal Code 
(1890), that in Italy criminality had a marked increase at a time 
when the severity of repression was also increasing. In England, 
on the contrary, it has been shown that in the last decade, while 
the severity of punishment continually decreased, crime did not 
increase but also actually decreased: a decrease all the more 
foreign to the other countries of Europe since it is brought about 
by the mitigation of the most widespread social causes of crime, 

we observe, except in the last decade, that heavy sentences increase when the 
number of acquittals decreases (periods, IV, VI, VII, X in the Assizes, and II, 
V, VTII in the Tribunals), and vice versa the heavy penalties decrease when ac- 
quittals are most easy (periods V and VIII for the Assizes). This is a new proof 
that the lesser number of acquittals and the increased predominance of heavy 
punishment is actually the effect of a greater rigor on the part of juries and judges. 

Cuche, "L'avenir de l'intimidation," in the "Rev. penit" (1894), p. 786, 
says that on the contrary there is in France a current unfavorable to severity of 
repression and that this fact, scientifically certain, has been misconceived by Perri. 

Now, statistical figures are positive facts and they show us that repression in 
France has not decreased, either as to quantity (acquittals) nor as to quality 
(heavy punishments). 

The contrary impression is only that of superficial observers, who, in seeing 
the increase in the effective number of light sentences, do not reflect (as we have just 
seen in the case of Tarde, apropos of undiscovered criminals) that this is due to 
the enormous increase of petty delicts and to the morphological evolution of crim- 
inality, which is becoming less and less violent. 

An accurate opinion can be formed only from the percentage figures, and these 
figures in spite of any contrary appearance show the accuracy of my statement. 
Moreover, Cuche himself substantially admits that the proofs made have already 
produced a change in the views of criminalists, good eclectics like himself, who 
concede that penalties are not the remedy for crime, but are not yet willing to 
take from them all efficacy, and who make of penalties something like the paper 
of Dante, "not yet black, but the white of which is gone." 

Hence, as a result, they end in recommending this aggravation of penalties 
which is the logical consequence of the old theory of intimidation, a theory sys- 
tematized by Feuerback (psychological coercion) and now taken up again; a fact 
which proves that there is very little of inventive imagination among the eclectics 
(Dubuisson, Impallomeni, Alimena, Cuche, etc.) of whom we shall speak in Part 
III, post. 



§ 154] LAW OF CRIMINAL SATURATION 225 

such, for instance, as the number of abandoned children and in 
general the betterment in the conditions of moral existence among 
the working classes, which are the most numerous. 1 Hence, we 
may conclude that while judicial repression in Italy and France, 
whether in the number of acquittals or in the predominance of 
heavy sentences, both in crimes and in delicts, has not become 
less severe, crime has constantly gone on increasing. 2 In this 
fact, which gives a categorical denial to the general opinion that 
the sovereign remedy against the overflow of delicts is in a more 
stringent repression, we have the right to see a positive proof 
that the systems of penalty and reclusion hitherto adopted have 
not fulfilled their duty of defending society against the most usual 
criminal attacks. For the future it is necessary to require of 
criminal law a better direction in the study of facts, so that the 
study of psychological and sociological laws may guide us in the 
function of social preservation, less towards a violent and always 
tardy reaction against actual criminal phenomenon, than towards 
a constant effort to eliminate or avoid its factors. 



§ 154. Prevention of Crime not Punishment for Crime Needed. 
The capital importance of this conclusion, drawn from the 
data of statistics, and the necessity of supporting it on general 
biological and sociological laws, requires a more complete expla- 
nation of the insignificant efficacy of punishment in fighting crime. 
And this is the more necessary since, after the second edition of 
this work appeared, a number of criticisms and objections were 

1 Tarnowsky, "La diminuzione della criminalita in Russia," J. M. J. (St. 
Petersburg, October, 1897), reviewed in the "Rev. penit." (1898), p. 172. 

2 In this connection, Le Bon, "L'homme et les societes" (Paris, 1881), II, 
389, gives a short statistical note intended by him to show that the increase of 
crime in France is due to a lesser repression. To prove this assertion, which is 
only the ordinary illusion on the efficiency of penalties, he contrasts the increase 
of convictions for crimes against the person from 1872-1876, with the decrease of 
capital executions. Really such a use of criminal statistics shows simplicity on 
the surface. Is the death penalty the sole element of repression? And what 
relation is there between capital executions and the total number of crimes against 
the person, which for the greater part are not punishable with death? It is nec- 
essary to glance at the capital crimes (assassination, poisoning, parricide, homi- 
cide) and it will be found that in these crimes, not in five years but in a half 
century, persons accused, tried, and sentenced fell off in spite of decrease in capital 
executions from 660 in 1826 to 398 in 1878. One should hence be persuaded that 
in order to judge the influence of repression on culpability, it is at least necessary 
to make the distinctions and the careful calculations of which in my opinion, I 
have given an example. 



£26 DATA OF CRIMINAL STATISTICS [§ 155 

directed to this fundamental conclusion. 1 A consideration of the 
entirety and the diverse nature of anthropological, physical, and 
social factors, favorable or unfavorable to the genesis of criminal 
phenomena, readily proved that punishment has very little power 
against crime. Punishment, a legislative threat, possessing its 
greatest force as a psychological motive, obviously cannot com- 
bat the physical and social factors of crime, such as climate, 
morals, increase of population, or agricultural productivity, and 
economic and political crises which statistics show are the most 
sensible causes of the increase or decrease of crime. Consequently, 
in accordance with the natural law, which demands that the 
combating forces shall be of the same nature, since the fall of a 
heavy body cannot be prevented, deviated, or accelerated except 
by the force of gravity, it is evident that punishment, because 
it is a psychological motive, can oppose only the psychological 
factors of crime, and even among these only the occasional factors 
when they are not too sudden. It is further evident that punish- 
ment, unless applied in the isolation of the culprit, could not 
neutralize the organic and hereditary factors disclosed by crim- 
inal anthropology. It is not comprehensible, therefore, how, in 
face of the complexity of criminal factors, so different in kind 
and energy, punishment alone should be, in its simplicity, a panacea 
for all criminal impulses and for all delinquents. On the contrary, 
one can understand that it should only exert, as Roeder 2 said, 
the quite insufficient action which is the property of all panaceas. 

§ 156. Three Sociological Strata of Delinquents. 

Let us recall, in this connection, a fact too often forgotten by 
legislators, criminalists, and superficial observers. Every teacher 
who has any aptitude for psychological observation always 
distinguishes in his class three categories: the diligent and well- 
disposed pupils who work on their own initiative, without any 
need of disciplinary rigor; the ignorant and sluggish dullard 
(neurasthenic and degenerate) from whom one can extract noth- 

1 The basic importance of this conclusion (which if it should once be generally 
accepted would give an entirely different orientation to the measures of social 
preservation against the disease of crime) has recently been recognized by the 
"Conference du jeune Barrau" of Brussels, which expressly established "an in- 
vestigation of convicts to determine the efficacy of punishment both as a preven- 
tive and correctional means." See "Journal des Tribunaux" (23 October, 1898), 
Col. 1091. 

2 Roeder, "Las doctrinas fondamen tales reinantes sobre el delito y la pena" 
(Madrid, 1877), p. 306. 



§ 155] LAW OF CRIMINAL SATURATION 227 

ing good by either mildness or punishment: and, finally, the 
pupils who are neither too studious nor too stubborn and for 
whom a discipline based on the laws of psychology may be really 
effective. It is the same for soldiers, for prisoners, for every 
human association, and even for universal society. Groups of 
individuals, bound together by constant relations, form so many 
partial organisms in the collective organism of society and re- 
produce society itself in the partial organism just as a fragment 
of a crystal reproduces the mineralogical characteristics of the 
whole crystal. 1 The psychological and sociological laws are as 
constant as the physical and physiological. In criminal sociology 
we can divide the social strata into three categories; the class 
normally highest (and this is not always the class socially highest), 
which does not commit delicts because it is honest in its organic 
constitution, as the effect of a moral sense without any other 
sanction than that of its own conscience or of public opinion and 
even, as Spencer 2 remarks, by the effect of habit acquired and 
hereditarily transmitted, and (as I think should be added) main- 
tained by favorable conditions of social life. This category, for 
which the Penal Code is perfectly useless, is unfortunately the 
least numerous in society. 3 Another class, lower in the scale, is 

1 There are, nevertheless, some differences between the manifestations of ac- 
tivity of a group of men and those of a whole society. This is why I think there 
should be a bond uniting psychology, which studies the individual, and sociology, 
which studies a whole society, into what might be called collective psychology. 
The phenomena proper to certain groups of individuals are governed by laws sim- 
ilar but not identical with those of sociology, and vary as the groups themselves 
are an accidental or permanent reunion of individuals : thus collective psychology 
has its field of observation in all of the more or less adventitious reunions of men : 
public roads, markets, exchanges, shops, theaters, committees, assemblies, colleges, 
schools, barracks, prisons, etc. 

The practical applications to be deduced from these facts are numerous, as 
we shall see, for example, in Chap. IV, in treating of the jury according to the laws 
of psychology, and as Sighele, in developing this thought (which I had expressed in 
my first edition, 1881, p. 57), has quite fully demonstrated by his labors in collec- 
tive psychology, i. e., psychology proper to a visible and limited group of men. 
And for that very reason it is intermediate between individual psychology and 
social psychology or "Volkerpsychologie," appropriate to a whole society or to a 
class without visible limits of extension. 

See Sigheli, "La folia delinquente," 2d ed. (Turin, 1895), and "La coppia cri- 
minate," 2d ed. (Turin, 1897); Le Bon, " La psychologie des foules " (Paris, 1895); 
Tarde, "Foules et sectes," in "Essais et melanges sociologiques"; Rossi, "L'ani- 
mo della folia" (Cosenza, 1898). 

2 Spencer, "The Data of Ethics," 6th ed. (London, 1892). 

3 It is through forgetfulness of this difference in the social strata, that, for 
example, Smile de Girardin, "Du droit de punir" (Paris, 1871), was led to the idea 
that for the maintenance of social order, it would suffice to abolish punishment 



228 DATA OF CRIMINAL STATISTICS [§ 156 

composed of individuals refractory to every sentiment of honesty 
because they are deprived of education and always held by mate- 
rial and moral wretchedness in the primitive condition of a savage 
fight for existence. They receive as an inheritance (which they 
transmit to their descendants through marriage with other indi- 
viduals of the same category) an abnormal organization, which 
unites, as we have seen, with a pathological and degenerate con- 
stitution in a real atavistic return to the savage state. From this 
class is recruited the greater part of the contingent of born-crim- 
inals, against whom punishment as a legislative threat has least 
efficacy because they lack the social sense which would make 
them regard punishment otherwise than as the risk naturally 
attached to crime, in the same way as other dangers are attached 
to honest industrial activity. The third social class is composed 
of individuals, not born to crime, but whose honesty will not with- 
stand a test, who oscillate between vice and virtue, who are not 
devoid of moral sense and who often have a certain amount of cul- 
ture and education. For these, punishment, within the narrow 
limits of a psychological motive, may be really efficacious. It is 
precisely for this class, which furnishes the most numerous con- 
tingent of occasional criminals, that punishment offers some 
utility, especially when in its application it inspires scientific 
principles of sane penitentiary methods and criminal psychology, 
and when seconded at the very outset by efficient social measures 
to prevent the occasions for crime. 

§ 156. Punishment as a Preventative and the Three Classes of Criminals. 

Garofalo, appropriating these ideas, concludes that while there 
is some temerity in a general assertion that punishment lacks 
preventative efficacy, yet it is necessary to distinguish between 
the classes of delinquents capable of feeling the full value of the 
menace and those upon whom it acts with but limited force. 1 
Yet this conclusion as to the very limited efficacy of punishment, 
shown by the observation of facts and proven, in fact, as Bentham 
says, by the infliction of every punishment, since the infliction 
proves that the penalty could not prevent the crime, 2 is opposed 
by an illusion so deeply-rooted that even some positivists have 

and substitute the sanction of public opinion. He forgot that while this sanction 
would suffice for the class of honest folk, yet something more conformable to their 
sentiments and natural tendencies is required for the class of evildoers. 

1 Garofalo, "Criminology " (Little, Brown & Co., 1914), p. 208. 

2 Bentham, "Treatise on Civil and Penal Law," Introd., p. IV. 



§ 156] LAW OF CRIMINAL SATURATION 229 

not escaped it. Although they agree with me in the end, they 
either declare that "the persistence with which crime is com- 
mitted proceeds from the lack of an opportune repression" l 
and "that one of the principal causes of the increase of crime in 
Italy is the mildness of punishment," 2 or they neglect the first 
question which should be put in the matter of criminal sociology, 
namely, whether penalties of any kind (in which they believe that 
they see excellent defensive weapons) actually have the virtue 
of social defense and to what extent they possess it. 3 

While our conclusions are divergent from those of the partisans 
of penal severity, yet they do not agree with the conclusions of 
writers who place too much confidence in the mildness of punish- 
ment. There always remains this essential difference: while the 
latter do not reach (as some have done) the apex of exaggeration 
in believing that punishment is the more efficacious and useful 
against crime (I mean natural crime) in the ratio of its mildness, 
they nevertheless (if not in words at least in fact) retain their 
exclusive confidence in the action of penalties. We, however, 
believe (and this idea, sustained by the positive school in new experi- 
mental proofs, has gained much ground), we believe, I assert, that 
first of all it is necessary to have recourse to other methods and 
means than penalties for the defense of society. We believe, in 
a word, that remedies should be adapted to the different factors 
of crime. The factors most susceptible of being changed, as well 
as the most active, are the social factors, and we maintain, as 
Priiis says, that "social remedies are appropriate to social ills." * 
Hence Tarde's remark is inaccurate when he says that our con- 
viction of the quasi-utility of punishment is solely the effect of our 
theories on the anthropological and physical nature of crime and 
that, "inversely, the important predominance attributed by him 
to social causes in the origin of crime, prevents him from accepting 
this conclusion." 6 In reality, since punishment as a psychological 
motive is an anthropological measure, and as a material preven- 
tive is a physical measure, it should, in abstract logic, correspond 
to the theory of crime which is exclusively biological and physical. 

1 QuStelet, " Anthropometric," Lib. V, § 5. 

2 Lombroso, " L'incremento del delitto in Italia" (Turin, 1870), p. 28. 

3 Beltrani-Scala, "La riforma penitenziaria in Italia" (Rome, 1879); Garo- 
falo, "Criterio positivo della penalita" (Naples, 1880). 

4 Prins, "Etude sur la criminalite d'apres la science moderne," in the "Revue 
de Belgique" (15 December, 1880). 

6 Tarde, "La philosophic penale" (Lyons, 1890), p. 468. 



230 DATA OF CRIMINAL STATISTICS [§ 157 

On the contrary, it is because I recognize also the influence of 
environment, that I maintain experimentally the inefficiency of 
punishment as a remedy for crime, when, aside from punishment 
and before punishment, nothing is done by other means to neu- 
tralize or diminish the crime-producing action of social factors. 



§ 157. Prevention the Object of Criminal Laws. 

The Classical School, confronted with the excess of rigor of the 
Middle Ages, was solely preoccupied, and properly so, with the 
mitigation of penalties. It could not (since each epoch has its 
mission) seriously occupy itself with that other more useful and 
more efficient task, which consists in anticipating crime. A small 
group of thinkers, by the nature of their minds more prone than 
the others to positive studies (I shall cite them further on), 
in vain opposed a few bold and profound pages on preventative 
methods to the numerous volumes which were written on punish- 
ment. They were not listened to simply because science had not 
yet demonstrated the multiple factors of crime and the great 
majority of criminalists, legislators, and judges were concerned 
only with repression. We have, it is true, the platonic declara- 
tions and, as Bentham says, "the empty declamations" of a 
multitude of writers on the sole and real utility of prevention in 
relation to repression. But the facts do not bear out the words. 
I limit myself to the citation of a few examples in order to show 
that in all classes, among practical men such as public officers 
and legislators, the error, that punishment is the real panacea 
for crime, reigns supreme. The practical men declare that "a 
prohibitive penal law should be considered the first, the grandest, 
the mistress of preventive laws." * Public officers, concerned 
at the steady extension of crime, propose a more vigilant and 
more severe repression as the sovereign remedy. A coun- 
sellor of the French Court of Cassation writes: "In a good 
social police there is no better safeguard for order and security 
than intimidation." 2 Legislators speak the same way. In France 
the Minister of Justice ("garde des Sceaux") in his report on 
judicial statistics for 1877 treating of the steady increase of rape 
and criminal assaults concludes thus: "In any event, only a firm 
and energetic repression can react against such a deplorable spread 

1 Musso, "II codice penale in Italia," R. E. (16 January, 1881). 

2 Aylies, "La question penitentiaire," in the R. D. M. 



§ 158] LAW OF CRIMINAL SATURATION 231 

of outrages against good morals"; x and even more recently 
another French Minister of Justice concludes a volume of statis- 
tical recapitulation from 1826 to 1880, by saying that the in- 
crease of crime "cannot be combated except by an incessantly 
energetic repression." 2 Tarde also becomes a party to these 
words, falling into the common illusion, when he says; "if 
crimes are only, as is asserted, the railway accidents of society 
under full steam, it should not be forgotten that a fast train re- 
quires a more powerful brake and there is no doubt that such a 
state of things demands an increase or a change of repression and 
of penalties." 3 Our conclusion is not new; but, as Stuart Mill 
said, there are two ways to advance useful innovations; either to 
disclose what was not previously known, or to place again in 
honor and fortify with new proofs the truths too much neglected. 
While some criminalists, with the aid only of sagacious observa- 
tion guided rather by a positivist turn of mind than controlled by 
the strict laws of the method, have continued to repeat the phrase 
"Quid leges sine moribus?" — and to proclaim this truth, that 
it is better to anticipate crime by suppressing its causes than to 
fight it by useless repression, their voices have not been heard. 
But when a science, animated by a new spirit and profiting by 
the positive researches of criminal sociology, proclaims the same 
truth and confirms it by the study of the natural causes of crime, 
it is very probable that this truth will pass from the theoretical 
field of scientific principle into the fertile domain of practical 
application. 

§ 158. History of Punishment. 

The error of seeing in the influence of penalties a serious ob- 
stacle to crime is so widespread that it is worth the trouble of 
seeking its historical and psychological reasons, since "an exami- 
nation of its genealogy is a way to avoid impatience in judging of 
the value of an idea": 4 in that way we shall find many argu- 
ments in favor of our conclusion. If we pass over the primitive 
foundation of vengeance, derived from the savage period of 
private struggle and passed into the spirit and rites of the first 
penal laws and which endures yet in a state of survival in the laws 

1 Dufaure, "Rapport sur la statistique de 1876" (Paris, 1878), p. xli. 

2 Humbert, "Rapport sur la justice en France de 1826 a 1880" (Paris, 



p. CXXXl. 

3 Tarde, "La statistique criminelle," in the R. P. (January, 1880), p. 59. 
For Italian examples, see the Italian editions; 4th ed., pp. 379-380. 

4 Spencer, "The Nebular Hypothesis." 



232 DATA OF CRIMINAL STATISTICS [§ 158 

of modern society, if we disregard, also, the hereditary effect of 
the stern traditions of the Middle Ages, which, like the preceding 
element, contributes to an unconscious sympathy for the severity 
of penalties especially in the case of more serious and recent 
crimes, — then one of the principal reasons of this tendency is 
an error of psychological perspective which causes us to forget 
the considerable differences, that I mentioned just now, between 
the ideas, habits, and feelings of the different social strata. 1 It is 
because of this forgetfulness that honest folk confuse the idea 
they have of penal law and the impression they receive from it, 
with the very different idea and impression of the social strata 
which furnish the greatest number of delinquents. This has 
been frequently remarked (although too much neglected) by 
Beccaria, 2 Carmignani, 3 Holtzendorff, 4 and by those who, like 
Lombroso, have studied the peculiar language ("argot") and 
literature wherein criminals mirror themselves as in a psychologi- 
cal glass. 5 It is further forgotten that in the case of normal men, 
the greatest repellent efficacy, after physical and moral repug- 
nance to crime which is the strongest, is not so much in the legal 
sanction as in the sanctions of secret conscience and of public 
opinion. On the contrary, these sanctions are unknown, or prac- 
tically unknown, to the abnormal individuals who, in their organic 

1 Maine, "Ancient Law," Chap. X. 

2 Beccaria, "Dei delitti e delle pene," § 21. 

3 Carmignani, "Teoria delle leggi," Lib. Ill, P. I. Cap. V.; P. 2, Cap. I. 

4 Holtzendorff, "Das Verbrechen des Mordes und die Todesstrafe" (Berlin, 
1875), Chap. II. 

6 Lombroso, "L'uomo delinquente," 5th ed., P. Ill, Cap. X, XII; Venezian, 
"Vocaboli e frasi del gergo veneto," A. P. II, 2; Mayor, "Nota sul gergo fran- 
cese," id., IV, 4. 

Habitual criminals call the galleys ("le bagne") "the happy house'' and the 
jail (prison) the "little Milan," or "Casanza" or "home" ("terra tua"). The 
songs of the convicts have similar terms in the "Canti Siculi" of Pitri, for example: 

"Cu'dici ca la carzara castia 

Cuma v'ingannati, pavireddi." 
"Who says the prison chastens, 
"How are you deceived, poor people!" 

and 
" Prison, my life, dear happy prison ! 
" How I love to be within thy walls ! . . . 
"There only findest thou brothers, there friends, 
" Money, good table, bread and joy." . . . 

A song of the French prisons ends with this refrain: 

"Adieu! Nous bravons vos fers et vos lois." 
"Farewell! We brave your irons and your laws!" 



§ 159] LAW OF CRIMINAL SATURATION 233 

and psychic constitution represent a retarded form of human 
evolution. In the higher classes an example will suffice, and it 
is the fact noted by Spencer l that gambling debts and debts of 
the Stock Exchange are paid scrupulously although there are 
neither penal sanctions nor authentic writings. And here is an 
observation that should be appended: the debtor's prison was 
never sufficient to cause contracts to be punctually executed, so 
that it was finally abolished, and the suppression of the penalty 
did not have the effect of increasing the number of defaulted 
contracts. In the lower classes, it is sufficient to have once visited 
the prisons. There if one asks a convict why the penalty has not 
deterred him from crime, he generally answers that he did not 
think of the penalty; or else he answers, as an habitual thief 
at Turin answered me, and as many others have repeated to 
me in other prisons, that "if one is afraid of undergoing ills 
through working, one finally ceases to work." Such, in effect, 
must be the feelings and the thoughts which rule the lower social 
strata, where ideal conceptions of honesty or even of personal 
interest (according to which in the long run, virtue is always the 
most advantageous) cannot penetrate the material, moral, and 
intellectual misery. Stanley observes that flint-locks, weapons 
used by civilized countries for centuries, are only now appear- 
ing in the interior of the Black Continent. In like manner the 
psychologist whose observations penetrate the lowest social 
strata notes that it is only now (so unhappy and inhuman are the 
conditions of their life) that a distant echo of certain feelings 
and certain ideas, long possessed by the upper strata, is making 
itself heard in those depths. 

§ 159. Exceptional Penalties and Repression. 
Another equivocation that helps to maintain this exaggerated 
confidence in the efficacy of penalties is that the effects of the codes 
with their slow and circumspect procedure are likened to the 
effects of exceptional laws and of their summary procedure. They 
say: "It is an established fact that the energetic repressions of 
Sixtus V in the Papal States; of the Austrians in 1849 against the 
bands of Este and Brescin; of the French under Manhes in 
Calabria; of the Italians under Pallavicino and Medici, have 
been able to control and sometimes even to suppress collective 
delicts. And certainly the crimes of the internationalists of 
1 Spencer, "Introduction a la science sociale" (Paris, 1878), p. 15. 



234 DATA OF CRIMINAL STATISTICS [§ 159 

Paris and Alcolea have been repressed for a long time by sudden 
massacres. The Pica law diminished brigandage in the province 
of Naples. The law of 6 July, 1871, reduced the number of affrays 
in Romagna." : In this connection there are a number of things to 
be observed. First, with regard to history the same author re- 
calls that assaults were renewed and multiplied notwithstanding 
the most severe penalties. 2 To refer to the single striking in- 
stance of the repressions of Sixtus V, history shows that this period 
of extraordinary and savage severity had scarcely closed (it is 
well known that when there were no bandits to exterminate, the 
legates of Sixtus V and his governors caused the corpses of persons 
of low degree to be decapitated in the cemeteries and sent the heads 
to Rome as those of executed criminals), and Sixtus V had scarcely 
died, when all the chiefs of the band who had escaped the searches 
of the pontifical legates reappeared as by magic. Sacripante 
in the Maremmes, Batistella in Latium, Piccolomini in Umbria, 
reappeared at the head of bands which seemed to spring from 
the earth and to the number of 15,000 in 1595. And yet execu- 
tions continued on a large scale. The Venetian ambassador to 
Rome under Clement VII wrote as follows: "The severity of 
justice is such that the executioner has difficulty in attending to 
it. Capital punishment is inflicted on the bandits and their 
accomplices; and yet their number is so great that no day passes 
without the sight of the heads of those executed being brought 
in or their corpses exposed on the bridge of Saint-Ange, four, six, 
twenty, or even thirty at one time placed in a row side by side. 
It is estimated that there have been more than one thousand 
executions from the pontificate of Sixtus V (1590) to the present 
year (1595). And a strange thing is that it is said that this 
severity has only caused the increase of brigandage." 3 I might 
offer similar answers to the other examples cited by Tarde in main- 
taining the efficacy of penalties, 4 and reply that being exceptional 
measures of social defense, they cannot afford very serious con- 
clusions in the matter of ordinary, slow, and uncertain penaliza- 
tion. In reality, exceptional laws against a particular form of 

1 Lombroso, " L'incremento del delitto in Italia," p. 29. Yet in his "L'uomo 
delinquente," 5th ed., Vol. Ill, he no longer classes energetic repression among 
the remedies for crime, and hence participates in my conclusions. 

2 Lombroso, "L'uomo delinquente," 5th ed., Vol. Ill, pp. 8, 20. 

3 Dubarry, "Le brigandage en Italie" (Paris, 1875), pp. 105, 114. To the same 
effect is Despine, "Psychologie naturelle," III, p. 303. 

4 Tarde, "Penal Philosophy " (Little, Brown & Co., 1912), pp. 473, et seq. 



§ 159] LAW OF CRIMINAL SATURATION 235 

ordinary or political criminality which have become more frequent 
at certain moments have contributed to maintain the illusion on 
the efficacy of punishment. As in such case they are directed 
against an acute manifestation of real delinquency or of pseudo- 
crime and as this access is of itself transitory and hence destined 
to rapidly pass away, it is to the penalties that criminalists (and 
public opinion more fully) freely attribute a preventive or cura- 
tive power which they do not really possess, by virtue of reasoning 
"post hoc ergo propter hoc." This has happened and still happens 
in the case of brigandage in certain provinces of Italy, and in the 
case of anarchistic attempts in many countries of Europe. Thus 
Garraud, at the Congress of Geneva (1896), repeating what he 
had already declared in a publication, 1 and yielding to the com- 
mon illusion, asserted that the "application of exceptional laws re- 
sulted in a decrease of anarchistic attempts " (Ravachol, Vaillant, 
Henry, Caserio). I replied to him that this efficacy could be 
attributed neither to the exceptional laws nor to the ordinary 
penalties because these penalties are stimulants to crime in the 
cases where political or religious fanaticism greedily seeks martyr- 
dom and the notoriety which it brings; or else, that in any event, 
"these anarchistic attempts were symptoms of a species of social 
fever which after attaining its maximum must naturally decline 
and then disappear in a more or less definitive fashion." 2 And the 
facts have more than borne me out: for without any cessation of 
the regime of exceptional laws, there was a recrudescence of an- 
archistic attempts (Angiolillo, Luccheni, Acciarito), a year or two 
after the Congress of Geneva. 3 Exaggerated repression is not, 
therefore, always a remedy: but further, as Carrara 4 remarks, 
such measures, being inspired by the "jus belli," cannot and do 
not constitute the ordinary process of the punitive function which 
has not their principle of action, that is, the instant and not too 
scrupulous exercise of the rights of war, with extermination of 
the guilty and often also of the innocent. Exceptional laws 
should never be other than an entirely transitory regime. 

1 Garraud, "L'anarchie et la repression," §95. 

2 "Actes du 4 e congres d'anthropologie criminelle" (Geneva, 1897), p. 254, 
255. 

3 Dreyfus, therefore, utters an inexact assertion when he says ("La lutte legale 
contre Fanarchisme," in the "Rev. Penit.," 1896, p. 753): "Whatever opinion one 
may have of the legality of exceptional laws, no one disputes their efficacy." No: 
they are illegal and ineffective. 

4 Carrara, " Programma," §662, N. 2. 



236 DATA OF CRIMINAL STATISTICS [§§ 160, 161 

§ 160. Distinction of Fear of Punishment and Repressive Penalties. 

It should especially be remarked that no sufficient distinction 
is made of the different moments of the application of penalty 
and that its possible effects are confused. It is essential to dis- 
tinguish the penalty prescribed in the Code, from that applied by 
the judge, especially with the intervention of a jury, and particu- 
larly from that applied by the jailor. That punishment should 
inspire fear in a criminal who is already in custody and is about 
to be convicted, is a natural fact, but it does not in any way 
prove the efficacy that the legislative menace should have had in 
order to turn him from crime. 

§ 161. Repressive Force of Penalties; a Summary. 

If, now, to the natural sentiment of vengeance, — to the his- 
torical traditions, — to the neglect of organic and psychic differ- 
ences among the different social strata, — to the confusion that 
reigns between exceptional laws and the regular primitive function 
and between the different moments of penal application, — we 
add the force of a fixed habit of thinking in a certain way and the 
natural tendency of the administrators of the penal law to fix 
their attention exclusively on the penalties; if we consider, further, 
how easy it is to believe, with the common opinion, that it suffices 
to draft a penal law in order to get a remedy for social infir- 
mities or to prevent their aggravation — then we have little 
difficulty in understanding how this exaggerated confidence in 
punishment (which is constantly belied by facts and by psycho- 
logical observation) always persists and shows itself in every 
theoretical or practical discussion. Certainly human activity, 
like that of the animals, covers the whole distance between the 
two poles of pleasure and pain, by the attraction of the one and 
the repulsion of the other. Punishment, a form of pain, is, indeed, 
always a direct determinant of human conduct, as it is also an in- 
direct guide of conduct as a legal sanction, by unconsciously 
making respect for law deeper and stronger. But the first ob- 
servation, which is conformable to a great psychological law, shows 
that punishment is in itself natural and that it is absurd to assert 
its absolute inutility and impotence or to propose its abolition, — 
that observation does not contradict our assertion that punish- 
ment is of but very feeble efficacy as an obstacle to crime. 

A distinction between natural penalty or sanction and social 



§ 161] LAW OF CRIMINAL SATURATION 237 

penalty or sanction shows that the potency of natural penalty, 
great as it is, evaporates for the most part into social penalty. 
And social penalty is, more or less, in every system but a wretched 
imitation or caricature of natural punishment. The mute but 
inexorable resistance of nature to every act which transgresses 
her laws and the painful consequence resulting to the doer of the 
act really constitute an extremely effective penal system, from 
which man, especially in the less developed stages of his intelli- 
gence, savagery, and infancy, receives continued lessons and learns 
not to repeat certain harmful actions. This "discipline of natural 
consequences," as it is called in pedagogy, is certainly a good edu- 
cational regime, as Rousseau has already said, and as it has been 
explained by Spencer 1 and Bain 2 among others. Punishment 
in this natural, spontaneous form draws all of its force from the 
inevitableness of its consequences. One of the rare observations 
of practical psychology made and repeated by the classical crim- 
inalists is that, especially in the case of the death penalty, the 
certainty of punishment has more power than its severity. To this 
I add another psychological law, that a slight uncertainty reduces 
to a greater extent the repulsive force of the pain feared than a 
great uncertainty reduces the seduction of the pleasure antici- 
pated. We see a first and powerful reason for the weak efficacy 
that legal penalties are capable of when we think of all the proba- 
bilities of escaping them, which suggest themselves to the mind of 
one who commits an anti- juridical act. The probability of not 
being discovered, which is the first and strongest motive to the 
act meditated; the probability that if detected, the proof will be 
insufficient, that the judges will be lenient, or that they can be 
deceived, that the judgment will be dissipated in the turns of a 
labyrinthine procedure, that a pardon will come to prevent the 
sentence or to commute it, and that the execution of the punish- 
ment will be lessened through the mechanism of a conditional 
release, and so on: these are all so many psychological forces 
opposed to the natural fear of untoward consequences, forces 
which are unknown to natural sanction while, on the contrary, 
they destroy the prohibitive efficiency of legal penalty. Further, 
there is another psychological condition which, while not leaving 

1 Spencer, "Education" (London, 1863). 

2 Bain, "The Science of Education." Ouyau, "Education et heredite" (Paris, 
1889), makes some objections to this pedagogical doctrine on the assumption that 
it is desired to make it the sole and exclusive criterion of pedagogy and not simply 
one of its directing rules. 



238 DATA OF CRIMINAL STATISTICS [§ 161 

the force of natural penalty intact, almost annihilates that of 
social penalty. This is the improvidence by which we see man 
defy even the most certain natural consequences and by which 
these consequences are powerless against certain acts which are 
perilous or contrary to nature. It is quite another thing in the 
antagonism between criminal impulsion and penal counter- 
impulsion if we recall that even aside from the rage of passion 
criminals and even occasional delinquents have, in common with 
savages and children, a special improvidence which, already great 
in the inferior classes whence they generally spring, constitutes 
in their case, as demonstrated by criminal anthropology, a specific 
mark of psychological imperfection. 1 Now, while a very small 
force is sufficient to produce very considerable and constant 
effects when it operates in the natural way of organic and psychic 
laws, 2 every measure, on the contrary, which departs from the 
natural tendencies of man, will always encounter a resistance 
which will combat it and finally master it. 3 Life teaches this lesson 
every day. Women whose pelvic bones are badly formed become 
mothers in spite of the immense danger of the Caesarian operation, 
and sometimes even after once having undergone it. Men 
consort with prostitutes, and often without any precaution taken 
and without being deterred by the fear of syphilis. Despine 
narrates that at Bilbao, in 1866, during a cholera epidemic many 
persons brought on diarrhea in order to obtain the gifts of the 
charitable society, although some died through the transformation 
of diarrhea into real cholera. 4 Fayet, in a study on the pro- 
fessional statistics of persons charged with crime in France during 
a period of twenty years, remarks that the greatest specific and 
proportional criminality is furnished by notaries and bailiffs 
("hussiers") who know better than others the penalties with which 
the law menaces the guilty. 6 To this we may add that in the 
forgery of banknotes, the forgers write and engrave the famous 
warning: "The law punishes forgers, etc."; and in spite of this 
stern notice they proceed with the criminal work. The classical 
criminalists themselves declare that even the death penalty has 

1 See the proofs of this improvidence of punishment in my "Omicidio," 
pp. 521 et seq. 

2 Gibbon, "Decline and Fall of the Roman Empire," Chap. XV. 

3 Beccaria, "Dei delitti e delle pene," §2. 

4 Despine, "Psychologie naturelle," III, p. 262. 

6 Fayet, "Statistique des accuses," in the "Journal des economistes," 1847; 
to the same effect Fregier, "Des classes dangereuses, II, III, pp. 370-372. 



§ 162] LAW OF CRIMINAL SATURATION 239 

no real efficacy for the intimidation of criminals, if only for the 
reason, as Montesquieu and Beccaria have said, that men become 
accustomed to it like anything else. This is confirmed by the 
striking fact, observed by the Almoner Roberts and by the magis- 
trate Berenger, that many persons sentenced to death had already 
witnessed capital executions, 1 and by the other fact brought 
to light by Despine 2 and by Angelucci 3 that murders are often 
committed, in the same town, on the same day, and sometimes 
in the same place that capital executions are conducted. Man 
is always indentical with himself and certainly no penal code, 
be it mild or harsh, can destroy in him natural and invincible 
tendencies such as the attraction of pleasure and the continued 
hope of impunity. Again, the lasting efficacy of any measure, in 
the political, economic, or administrative domain, is always the 
inverse ratio of its violence and suddenness. 4 

§ 162. Moral Prevention of Crime. 

Penal law, education, and pedagogy were formerly based on the 
idea of conquering the human passions by brute force. The rod 
ruled supreme. It began to be understood that this produced 
the contrary of what had been expected, because it provoked 
violence or hypocrisy, and the severity of chastisement was sof- 
tened. It is only now, however, that it is being discerned in peda- 
gogy how advantageous it is to rely simply on the free play of 
natural tendencies and of physio-psychological laws, the better to 
regulate individual activity practically. Indeed, since everything 
in pedagogy comes around to a task of suggestion and since sug- 
gestion is the passage of an idea from one brain to another where 
it takes root, it is clear that if one wishes to impose an idea violently 
it has an infinitely small chance of taking root and organizing in 
the brain of another. Persuasion which indicates the reasons 
and advantages of the idea suggested, together with care to avoid 
adverse ideas, has an incomparably more positive and surer 
efficacy than the compression which coerces contrary tendencies 
and the constraint which tries to impose the ideas or the tendencies 

1 Urn, "La pena di morte," R. F. (1876), I, 478. 

2 Des-pine, " Psychologie naturelle," III, pp. 370-372. 

3 Angelucci, "Gli omicidi di fronte all' esecuzione capitale," R. P. Ill, 694. 
See the documents establishing this "inefficacy of penal intimidation" in my 
"Omicidio," p. 368. 

4 Stuart Mill, "Fragments inedits sur le socialisme," in the R. P. (March, 
1879). 



240 DATA OF CRIMINAL STATISTICS [§ 163 

of which the acquisition is desired. 1 This is why the work of social 
defense, to speak like Romagnosi, 2 should be less a material 
effort of repression that a moral effort of prevention founded on 
the free play of physio-psychological and sociological laws. It is a 
fact that violence is a bad remedy for violence and always further 
incites it. In the Middle Ages, when the penal reaction was so 
brutal, the criminal acts were just as ferocious, and society by 
giving an example of its immoral emulation of wrongdoers moved 
pitiably in a vicious circle. Even to-day, as Ardigo 3 remarks, 
in the lower social classes the man who is often violent is himself 
more frequently mistreated; so that the scars of criminals are a 
true professional characteristic. 

§ 163. Punishment is a Negative Repressive Force. 

In conclusion, our doctrine on the efficacy of penalties is not, 
as classical criminalists have for controversial purposes pretended 
to think, the absolute denial of their efficacy, but it is the denial of 
the common and inveterate prejudice, according to which they 
are the best and most useful remedy against criminality. We 
say in substance : punishment, as a means of repression, has rather 
a negative than a positive efficacy. This is not merely because 
it has not the same hold on all categories of delinquents. Its 
utility is not in the imaginary power of changing an anti-social 
being into a social man, but rather, and primarily, in avoiding 
the very considerable evils which would be produced by im- 
punity, either in demoralizing the public conscience with respect 
to criminal acts or in further increasing the improvidence of crim- 
inals or, finally, in opposing no material obstacle to the repetition 
of delicts by convicts who are at least rendered harmless during 
the term of their expiation. 4 In education it is exactly the same. 
There is a general exaggeration of the power for transformation 
possessed by penalties. But education, which from earliest age 

1 Even in taming and training animals, it has been learned by experience that 
violence is of little use and that better results are obtained from the free play of 
basic psychological laws. Le Bon, "Les bases psychologiques du dressage," R. P. 
(December, 1894), p. 596; Letourneau, "L'education des animaux," Chap. I; 
"Involution de l'education" (Paris, 1898). 

2 Romagnosi, "Genesi del diritto penale," §920. 

3 Ardigo, "La morale dei positivisti" (Milan, 1879), p. 528. 

4 There is a. similar opinion in Notaristefani, "La funzione psicologica della 
pena," S. P. (July, 1894), p. 617, where he holds "that the criterion of punishabil- 
ity is found in the necessity of avoiding the dangers of impunity." To the same 
effect is Zerboglio, "Le pene e la loro efficacia," id. (September, 1897). 



§ 163] LAW OF CRIMINAL SATURATION 241 

exercises a prolonged action and therefore a greater effect than 
punishment, owes its advantages to the fact that it prevents the 
development of the anti-social tendencies, the germ of which exists 
in nearly all men, rather than to the power credited to it of creating 
social tendencies and energies in individuals who have not inher- 
ited them at birth. 1 This negative efficacy of punishment, par- 
ticularly during the term of its practical execution, has caused 
us to adopt the views which we shall develop, 2 namely, that we 
do not disapprove the tendency of the classical school to make 
penalties milder in their disciplinary application but that we see 
a complete and dangerous error in the continual mitigation which 
it is desired to extend even to the viewpoint of duration. Indeed, 
we understand very well that punishment should not be a gratui- 
tous and inhuman torment; but we are opposed to this upheaval 
of every principle of social justice which would have prisons more 
convenient and more comfortable than dwellings of poor and honest 
folk who may, so long as they remain honest, die there of acute 
or chronic starvation since society assures them food and lodging 
only when they commit culpable acts. 3 This is also our reason 
for withholding sympathy from the cell system, until now so 
strongly in vogue with classical criminalists and penalogists. It 
is inhuman, stupid, and needlessly expensive. It is a psychological 
absurdity and a social peril that punishment for ordinary crim- 
inals with congenital tendencies should be the more or less brief 
segregation of the convict temporarily placed outside of civil 
life. Yet such is the idea with which the new Italian Code is 
inspired. Without mentioning the disastrous effects of short 
sentences, inducing corruption and habitual criminality (effects 
now unanimously deplored by penologists), it is evident that we 
thereby take from punishment the surest part of its negative 
efficacy against atavistic criminality, the value it at least has of 
preventing the repetition of criminal attacks during the whole 
period of expiation. 

1 Ferri, "Socialismo e criminality," Cap. III. 

2 G., P. IV, post. 

3 Ferri, "Lavoro e celle dei condamnati" (Rome, 1886). 



CHAPTER V 

EQUIVALENTS FOR PUNISHMENT 

Equivalents for punishment — Examples in the economic, political, scientific, 
administrative, religious, family, and educational orders. Alcoholism. 
Vagabondage. Abandoned infancy. 

§ 164. Need of Other Means of Social Protection than Punishment. 

It being established that punishment, far from being the conve- 
nient panacea which it seems to classical criminalists, legislators, 
and the public, has but very limited power to combat crime, it 
is natural, therefore, that the criminal sociologist should seek other 
means of defense from the positive observation of facts and of 
their natural origin. The thousand experiences of daily life, of 
the family, of the school, of associations, as the history of the 
vicissitudes of societies, teach us that, in order to render the ex- 
plosions of the passions less pernicious, it is better to approach 
them from the flank at their very source than to attack them 
from the front. The intelligent husband in protecting the fidelity 
of his wife counts on something quite different from the articles 
of the code prohibiting adultery. Bentham relates that in England 
by combining the transportation of passengers with the postal 
service the annoying delays due to drunken couriers, against 
whom heavy fines were useless, were completely done away with. 
Certain discreet shelters arranged in convenient places contribute 
more to the cleanliness of cities than fines and arrests. The 
head of an industry obtains from his workmen more assiduous 
labor and a more satisfactory production, by interesting them, 
if only to a slight degree, in the profits than by fines and punish- 
ments. In the German universities, academic jealousy and in- 
tolerance has been largely neutralized by rewarding the professors 
in proportion to the number of their students, and hence, by 
interesting the faculties in calling and favoring the best masters 
in order to attract a greater number of students. 

Again, the activity and zeal of professors, magistrates, and 
employees is excited by increasing their emoluments, not alone on 
account of seniority but on account of the progress proved by 

242 



§165] EQUIVALENTS FOR PUNISHMENT 243 

their publication, by the number of decisions left unchanged, or 
proceedings unreversed. Every one knows that the workman 
labors more when he is paid by the job than by the day, and 
many manufacturers abuse this fact to exploit his working 
capacity. The troublesome and destructive activity of children 
is better regulated by amusing them with suitable games than 
by striving to stifle or punish it, to the great injury of physical 
and moral hygiene. In the same way, labor in insane asylums 
and prisons is a much more effective instrument of discipline and 
order than chains and irons. The Minister of Public Instruction, 
Villari, admitted, in the session of 14 March, 1891, that the sup- 
pression of antiquities and their sale abroad, which could not be 
prevented by the strictest penalties, had, on the contrary, been 
prevented by the offer of a reward to the finder of such an object 
who faithfully reported it. It is thus again that a well-advised 
housewife procures a less breakage of dishes by her servants when 
she allows them a slight increase of wages intended to pay for 
broken dishes and thus induces them to use more care. Briefly: 
one obtains more from men by flattering their self-esteem or ap- 
pealing to their interest than by using the constraint of authority. 
While Romagnosi was right when he said penal counter-impulsions 
should be opposed to criminal impulsions in the social order, yet 
it is more exact to say that, instead of relying on the acting of 
direct counter-impulsions it avails more to first seek the suppres- 
sion and indirect prevention of criminal impulsions, because, 
when once developed, it is futile to oppose them with punishment 
which has so little hold and which is only applied after it has 
been ineffective as a legislative threat. Now, since punishment 
as an instrument of social defense answers its purpose poorly, 
recourse must be had to other measures which may be substituted 
for it in satisfaction of the social need of order. 

§ 165. Penalties. Substitutes. 
From this springs the idea which I have called the equivalents 
of penalties ("sostituiti penali" — penal substitutes). While 
the social edifice will not be radically changed in its economic, 
and hence in its moral, political, and judicial bases in accord with 
the data and conceptions of socialistic sociology, we are certain 
that wherever these measures shall be able to exert their efficient 
power for prevention, no crime will be committed. That is to 
say, that the prevention of crime will be attained not through 



244 DATA OF CRIMINAL STATISTICS [§ 165 

penalties, but through these measures which within the limits 
of their efficacy are substitutes for penalties and not, as one of my 
benevolent critics preferred to think, agencies cooperating with 
penalties. 1 Since there is, as we know, a law of criminal satura- 
tion by virtue of which there is in every social medium a minimum 
of natural and atavistic criminality due to anthropological factors 
— because perfection does not exist in this world, — for this mini- 
mum, penalties, transformed according to the criteria which we shall 
see later, will be the last and indispensable obstacle to the inevi- 
table and sporadic manifestations of criminal activity. The 
equivalents of penalty, once assimilated, thanks to the new les- 
sons of criminal sociology, by the convictions and habits of legis- 
lators, will be particular antidotes against the social factors of 
crime. They will serve as a practical and gradual transition in 

1 "Rassegna settimanale" (September, 1880), Vol. VI, No. 140; and similarly. 
Garofalo, " Criminology " (Little, Brown & Co., 1914), pp. 372, et seq. When I pub- 
lished my theory of the equivalents of penalty in the " Archivio di psichiatria " (1880), 
pp. 67 and 214; Turaii, "Delitto e questione sociale" (Milan, 1882), made me the 
objection, that such a system is too fragmentary, since it does not remove the first 
and universal cause of crime, poverty: hence, he said that the radical solution of the 
penal system is socialism which by suppressing poverty suppresses crime. I an- 
swered him in my work "Socialismo e criminalita," where conceding the basic truth 
of the socialistic idea, I opposed, on the one hand, whatever of Utopian there was in 
the then socialism which was not yet inspired in Italy by the scientific positivism of 
the Marxian sociology: and, on the other hand, I maintained that the elimination of 
poverty would not bring about the complete disappearance of all crime: since one 
might suppress the epidemic forms of crime but not the acute and sporadic forms. 
Colajanni intervened in our controversy "II socialismo" (1st ed., Catane, 1884; 2d 
ed., Palermo, 1898), but with outoriginality of view and confined himself to the 
relation between biology and socialism. When I had studied and understood the 
inductions of the Marxian sociology and when I saw that it eliminated the Uto- 
pian part of socialism which I had fought in 1883, I openly accepted its theoretical 
and practical conclusions. I even proved that Marxism (economic transformation) 
is in perfect accord with biological transformation (Darwin) and with universal 
transformation (Spencer). See my work "Socialismo e scienza positiva." I there 
again maintained my thesis that socialistic organization should cause the disap- 
pearance of the epidemic forms but not of the acute and sporadic forms of crim- 
inality. I held, also, that in the transition period between bourgeois civilization 
and socialistic civilization, the system of equivalents for penalties was a practical 
necessity which moreover furthered the evolution of society towards the socialistic 
phase by eliminating the barbarous fetishism of penal repression. 

The theory of equivalents for penalties has received such a consecration (for 
example, England which experienced a reduction of criminality, thanks only to 
its institutions for social prevention) that from that time the theorists of socialism 
are agreed in accepting my ideas on this point, whenever they approach the prob- 
lem of crime formerly entirely neglected by them. 

See Ferri, "Recenti publicazioni di socialismo," S. P. (October, 1898), cited 
by Lichtenberger, "Le socialisme et la revolution francaise" (Paris, Alcan, 1899), 
p. 193. 



§165] EQUIVALENTS FOR PUNISHMENT 245 

reaching this social metamorphosis in the name of which it will 
not, however, be legitimate to oppose these measures by treating 
them as mere palliatives and by rejecting, with the impatience 
of generous aspiration, that practical patience which submits to 
the tyranny exercised by the law of evolution even in social life. 
Social organisms, like animal organisms, are capable only of partial 
transformations, which, however, in accumulating and mutually 
supplementing each other, constitute the different phases of social 
evolution. These equivalents for penalty should not, however, 
be the destination of a superficial social reform, but rather the point 
of departure in passing to a social order very different from that 
of today. The only justification of the theory of equivalents 
for penalty is this new order, and its only efficient utility is attain- 
ing that order; and thus, by adopting the collective ownership of 
the means of production and labor, and by thus assuring really 
human conditions of life to every human being who shall have done 
his duty (children and the sick excepted) in furnishing his daily 
toil in some form or other, will be accomplished the drying up, as 
Fauchet says, of "three great springs of crime: extreme riches, 
extreme poverty, and idleness." 

To propose these equivalents for penalty amounts to saying 
this: It is necessary, in legislative dispositions (political, economic, 
civil, administrative, and penal), from the great institution down 
to the slightest details of its existence, to give the social organism 
an orientation such that human activity, — instead of being 
uselessly threatened with repression shall be constantly guided 
in an indirect manner into non-criminal ways, and such that a 
free overflow shall be offered to the energies and needs of the indi- 
vidual whose natural tendencies will be hurt as little as possible 
and who will be spared as much as possible the temptations and 
occasions of crime. This fundamental idea of the equivalents 
for penalties shows how necessary to the sociologist and to the 
legislator is the preparation in biological and psychological knowl- 
edge on which Spencer rightly insisted. 1 The basic idea of the 
equivalents for penalty, rather than their explanatory and detailed 
enumeration (incomplete and open to discussion in detail) should 
be present to the mind when it is sought to judge their theoretical 
and practical value as a part of the general doctrine of criminal 
sociology. On the efficacy of a given one of these equivalents, I 
may find myself in more or less accord with those who have ex- 
1 Spencer, "Introduction to Social Sciences," Chap. XIV, XV. 



246 DATA OF CRIMINAL STATISTICS [§ 166 

amined and discussed them singly, and I shall take notice presently 
of their observation. But in any event, it is a fact that this 
theory has been admitted in substance by criminal sociologists, 
with the exception of those who have asserted that they "do 
not believe" in the efficacy of the equivalents 1 and of those 
who have confined themselves to miserable Byzantine discussions 
as to whether the equivalents for penalties belong to criminal sci- 
ence or to the art of government and politics. This is especially 
true, not when the doctrine is taken in an absolute sense considered 
as an universal panacea for crime, but when it is presented, as I 
have presented it from the beginning, as an orientation and a 
habit of the legislative and administrative mind, whereby the 
ancient fetishism of punishment is rejected and whereby, when 
there is question of facing some phenomena of social pathology, 
the legislative and administrative wisdom is not limited to the 
enactment of new penalties or the aggravation of existing penalties, 
but occupies itself with the search for the causes of these phenom- 
ena and attempts to eliminate them, to flush them away and dilute 
them in order more efficaciously to act upon their consequences. 2 

§ 166. Penal Substitutes. 

Let us see some examples. Free trade (aside from the transi- 
tory necessities for the protection of a given manufacturing or 
agricultural industry), since it more readily avoids hard times and 
abnormal rises in the price of foodstuffs, both of which have so 
direct an influence on crimes against property, prevents a mass of 
criminal disorders better than does the Penal Code. On the con- 
trary, the permanent monopoly of certain industries not only 
multiplies infractions, but foments other crimes against property 
and against the person, as was seen in Sicily a few years ago when 
the cultivation of tobacco was restricted. 3 

1 Vidal, "Principes fondamentaux de la penalite" (Paris, 1890), pp. 469 
et seq. 

2 Garofalo, " Criminalogia," 2d ed., pp. 199 et seq.; Dalle Mole, "Wagne- 
rismo penale" (Vicenza, 1887), pp. 46 et seq.; Tarde, "La philosophie penale," 
77 et seq.; De Mattos, "La pazzia," p. 186; Marro, "I caratteri dei delinquenti" 
pp. (Turin, 1887), Cap. XXVIII; and especially Lombroso, "L'uomo delinquente," 
5th ed., Turin, 1897), Vol. Ill, pp. 312 et seq. In a recent study by Richard, 
"La responsibilite penale et les equivalents de la peine," R. P. (September, 1899), 
the doctrine of equivalents for penalties has received a notable theoretical contri- 
bution, precisely "as an application of the synthetic researches of sociology to the 
art of legislation as a whole." 

3 These words which are found in my first edition (1881), p. 90, had a tragic 
confirmation in the popular movements of April and May, 1898, brought about 



§§ 167, 168] EQUIVALENTS FOR PUNISHMENT 247 

§ 167. Penal Substitutes. Economic Order. Freedom of Emigration. 

Freedom of emigration, viewed from this standpoint (that is, 
disregarding every higher consideration of its natural and social 
causes), aside from the fact that it is the effect of the conquest 
of free circulation which capitalists have tried to oppose through 
fear of scarcity of labor, is also a real safety valve which frees the 
country from elements easily drawn into crime, through poverty 
and badly balanced energies. Thus, in Ireland, the decrease 
of habitual criminals has been due less to the illusory wonders of 
the penitentiary system than to the emigration of liberated con- 
victs, which increased to forty-six per cent. 1 In Italy, also, 
studying the criminality of recent years, I have had occasion to 
indicate among the principal causes for the decreasing oscillations 
of 1881 and the following years, not only the mild winters and the 
good crops of these same years but also the extraordinary increase 
of emigration. 

§ 168. Penal Substitutes. Economic Order. Taxation. 

Smuggling, which for centuries resisted the most atrocious 
penalties, such as amputation of the hands, and death 2 and in 
our day imprisonment and volleys of customs officers, decreases 
visibly, thanks to the lessening of the duties, as shown in the case 
of France by Villerme and others. 3 Adam Smith was right 
when he declared that "a law which punishes smuggling after 
creating the temptation, and which in making the temptation 
stronger increases the penalty, is contrary to every principle of 
justice," and when he controverted Jeremy Bentham who, start- 
ing with the idea that the penalty should be heavier in the case of 
less desirable crimes, advocated the severest penalties for smug- 
by the enhancement in the price of bread and by the failure of the crops aggregated 
by a tariff of seventy-five francs per ton, the highest tariff on bread that has ever 
existed in the civilized world. 

See Giretti, "Illusion e danni del protezionismo," G. E. (September, 1898); 
and in the opportunist sense, Colajanni, " Sperimentalismo doganale," in the 
"Nuova antologia" (1st September, 1898). 

For an appreciation of these facts, Pareto, "La liberte economique et les evene- 
ments d'ltalie" (Lausanne, 1898). 

i "Revista di discipline carcerarie" (1877), p. 39; Beltrani Scalia, "La riforma 
penitenziaria in Italia," p. 194. 

2 Tissot, "Introduction philosophique a l'etude du droit penal" (Paris, 1874), 
p. 109. 

3 VillermSfils, "Des douanes et de la contrebande" (Paris, 1851). 



248 DATA OF CRIMINAL STATISTICS [§§ 169, 170 

gling. 1 A system of imposts, which would reach wealth accord- 
ing to its visible signs (rather than objects of prime necessity), 
and which would be progressive in proportion to income, would 
ruin these systematic frauds that penalties have been unable 
to prevent, and would correct the empirical and exaggerated fiscal 
system, which is a perpetual cause of resistance to the public 
power and of outrages and the like. 2 Fregier also speaks of 
different criminal industries, maintained by the octrois, which 
would disappear with these imposts, as unjust as they are 
absurd. 3 So, also, although Allard had stated that the reduc- 
tion of the duties on articles of prime necessity, aside from its 
good effects economically, would moreover diminish commercial 
frauds, 4 the official report of 1872 on French statistics, noting the 
increase of these very frauds, invoked a more severe repression as 
a suitable panacea. To this Mercier replied that since these 
crimes are the result of excessive taxation, the effect cannot be 
suppressed without suppressing the cause. 6 

§ 169. Penal Substitutes. Economic Order. Public Works. 

Public improvements in years of scarcity and in severe winters, 
by supplying work for the indigent, prevent, unless too long 
delayed, the increase of crimes against property, the person, and 
public order. There was a striking proof of this in France in 
1853-54-55, a period when, in spite of an agricultural crisis, 
there was no need to deplore an enormous increase of crimes 
against property, such as had occurred during the hard times of 
1847. This result was due to a provident government which 
knew how to provide labor in time and on a large scale. 

§ 170. Penal Substitutes. Relation of Alcohol to Crime. 

Imposts and other indirect restrictions brought to bear on the 
manufacture and sale of alcohol would be much wiser than im- 
posts on salt and flour, which further impoverish the poorest 
classes who are most easily drawn to crime. The influence of acute 

1 Smith, "Wealth of Nations," Lib. V, Chap. II. 

2 Bentham, "Theory of Punishment," Lib. I, Chap. V. 

3 Fioretli, "Pane, governo e tasse in Italia" (Naples, 1898); Pinsero, "Miseria 
e delitto," S. P. (June and August, 1898); Capitan, "Le rdle des microbes dans la 
societe," R. S. (10 March, 1894). 

4 Allard, 3. E. (15 September, 1898), p. 188. 

6 Mercier, "La justice criminelle et les imp&ts indirects," J. E. (October, 1854). 



§170] EQUIVALENTS FOR PUNISHMENT 249 

and chronic alcoholism (wines and liquors) on the increase of crime 
is a very serious question. In France, for example (and similar 
figures might be cited for many other countries), the figures relating 
to alcohol, crime, suicide, and insanity show an horrible agreement. 
For the whole of France the annual per capita consumption of 
wine estimated in 1829 at sixty-two liters, exceeded one hundred 
liters in 1869; in Paris it rose from one hundred and twenty 
liters in 1819-1820 to two hundred and seventeen liters in 1872 
and two hundred and twenty-seven liters in 1881. 1 Alcohol 
shows an even greater increase. The individual consumption, 
which was ninety-three hundredths liters for France in 1829, was 
three and twenty-four hundredths in 1872 and three and forty 
hundredths in 1895, with still higher figures in some cities. 2 
The manufacture of alcohol (from fruits, grains, beets, etc.), 
which amounted to four hundred seventy-nine thousand six hun- 
dred and eighty hectoliters for the whole of France in 1843, 
reached one million three hundred nine thousand five hundred 
and sixty-five hectoliters in 1879, two million and four thousand 
in 1887, 3 two m illion four hundred seventy-six thousand three 
hundred and eighty-seven in 1893, and two million twenty-two 
thousand one hundred and thirty-four in 1896. 4 As a parallel, 
we have seen the growth of the number of delicts and crimes in 
France and the increase of suicides from fifteen hundred and forty- 
two in 1829 to nine thousand two hundred and sixty-three in 
1895. Moreover, I have demonstrated by a special graphical 
table in the "Archivio di psichiatria" that there is observed in 
France (notwithstanding certain annual exceptions) an agreement 
between the increase and decrease of homicides and intentional 
assaults, and the greater or lesser production of wine, especially 
in years of great variation. This is noticeable in the years of 
poor vintage (1853-54-59-67-73-78-79-80), which were followed 
by a corresponding decrease in crime, particularly in woundings: 
and vice versa the years of abundance (1850-56-57-58-62-63- 

1 Caudelier, " Des boissons alcooliques en Belgique et leuraction sur l'appau- 
vrissment du pays" (Brussels, 1884). 

2 Block, "Statistique de la France" (Paris, 1895), II, p. 1405. 

3 Lunier, "Comptes rendus du congres contre l'alcoolisme" (Paris, 1879), 
p. 135. For later figures, see Yvernis, "Des rapports entre l'augmentation de 
l'aleool et le develloppement de la criminalite et de la folie," " International Con- 
gress on Alcoholism" (Paris, 1889), and A. A. C. (November, 1889), and particu- 
larly the report of Senator Claude, "Sur la consommation de l'aleool en France" 
(Paris, 1887), with an atlas, a work rich in statistical and legislative data. 

4 "La production annuelle des alcools," R. S. (21 August, 1897), p. 255. 



250 



DATA OF CEIMINAL STATISTICS 



[§170 



65-68-74-75) were followed by an increase of delicts. 1 It was 
thus that I then also showed, together with the recrudescence of 
sanguinary crimes in the month nearest the vintage, the mutual 
dependance of two phenomena, wine and crime, already indicated 
by the daily experience that Pierquin, among others, discussed, 

1 Here are the figures which would be more convincing if represented graphi- 
cally: for wine, they are taken from the "Statistique de la France," by Block 
(11, p. 74), and from the agricultural statistics, "Recoltes de la France"; for 
alcohol, they are taken from the work of Lunier, "La consommation des boissons 
alcooliques" in the "Journal de la societe de statistique de Paris" (Paris, 1878), 
p. 34: for the delicts, from the annual judicial statistics: 









Affaibs 




Fbance 






(homicides, simple 


Affairs 




Alcohol 


Vintage 


woundings and 


(for woundings and 




Subject to imports 


Millions of 


those which are 


intentional blows) 




on consumption 


hectoliters 


serious or followed 
by death) judged 


judged by the cor- 




rectional tribunals 


Year 






by the Assizes. 




1849 




35.5 


598 


13,176 


1850 


585 


4.47 


583 


14,153 


1851 


622 


39.4 


527 


13,684 


1852 


648 


28.4 


432 


13,701 


1853 


644 


22.6 


374 


12,083 


1854 


601 


10.7 


231 


9,599 


1855 


714 


15.1 


236 


9,402 


1856 


768 


21.2 


240 


10,565 


1857 


825 


35.4 


221 


11,907 


1858 


842 


46.8 


267 


14,246 


1859 


823 


29.8 


288 


14,083 


1660 


851 


39.5 


231 


12,737 


1861 


882 


29.7 


218 


13,109 


1862 


857 


37.1 


277 


14,473 


1863 


870 


51.3 


220 


15,166 


1864 


870 


50.6 


248 


16,695 


1865 


873 


68.9 


257 


17,462 


1866 


964 


63.8 


246 


17,560 


1867 


939 


39.1 


235 


16,189 


1868 


971 


52.0 


263 


17,839 


1869 


1,008 


72.7 


295 


18,467 


1870 


882 


53.5 


261 


12,765 


1871 


1,013 




392 


12,687 


1872 


755 




315 


16,128 


1873 


934 




263 


15,829 


1874 


970 




258 


17,064 


1875 


1,010 


88.2 


276 


18,419 


1876 


1,004 


44.7 


282 


18,908 


1877 




55.9 


228 


18,749 


1878 




49.2 


292 


18 666 


1879 




25.9 


275 


18,424 


1880 




29.6 


298 


17,747 



§170] EQUIVALENTS FOR PUNISHMENT 251 

and of which the newspapers were full whenever days of plenty 
brought about a recrudescence of woundings. 1 

Even aside from the annual frequency, the relations between 
alcoholism and crime are abundantly proved in a way that con- 
firms what Morel says: "That alcoholism produces a demoralized 
and brutalized class of wretches characterized by a precocious 
depravation of instincts and abandonment to the most shameful 
and dangerous acts." 2 I therefore consider that it is useless for 
me here to enlarge on the data that legal medicine and psycho- 
pathology furnish us on the relation between alcoholism and 
crime as well as the statistical data relative to the number of drink- 
ers recorded in the mass of delinquents and the number of cases of 
drunkenness and bar-room quarrels recorded by the statistics as 
the causes of crimes. The causal connection between alcoholism 
and crime has recently been disputed with statistical arguments. 
Tammoseo began with the observation that the countries of Europe 
where the most alcohol is consumed show a less proportion of 
sanguinary crimes, and he says the same of the several provinces 
of Italy. But what gives less force to his observations is that he 
was content to deny that "the abuse of liquor is the most active 
cause of crime." 3 Afterwards, Fournier de Flaix, maintaining 
the same thesis with the same statistical arguments and recogniz- 
ing that "alcohol is a special scourge for the individual who 
abuses it," came to the conclusion that "alcoholism is not a scourge 
that threatens the European race," and reasserted that the nations 
which consume most liquor show a less number of crimes and 
particularly of sanguinary crimes. 4 Lastly, Colajanni, without 
citing either Tammoseo or Fournier de Flaix, developed the same 
thesis, sustaining it principally on the thoroughly compiled statis- 
tical data of Kummer. His conclusion is that "there is no regu- 
larity, constancy, and universality of relations, in coincidence and 
succession, between alcoholism, delinquency, and suicide; and, 
hence, that it is impossible through the laws of statistics to es- 
tablish a relation of cause and effect between these things." 6 
Disregarding the errors of fact contained in the monograph of 

1 Pierquin, "Traite de la folie des animaux" (Paris, 1839), II, 369. 

2 Morel, "Traite de degenerescence de l'espece humaine" (Paris, 1857), 
p. 390. 

» Tammeo, "II delitto," R. C. (1882), pp. 56, 57. 

4 Fournier de Flaix, "L'alcool et I'alcoolisme," R. S. (14 August, 1886). 
6 Kummer, "Zur Alcoholfrage, Darstellung der Gesetze und Erfahrungen" 
(Beme, 1884); Colajanni, "L'alcoolismo" (Catane, 1887). 



252 DATA OF CRIMINAL STATISTICS [§ 171 

Colajanni, 1 it is sufficient to point out that his thesis is nothing 
but a gross error of statistical logic. 

§ 171. Physical and Psycho-pathogenic Influence of Alcohol. 

Our first assertion is that when one concedes (and it cannot 
be denied) the physical and psycho-pathogenic influence of 
alcohol not only in liquors, but also in wines (a form in which it is 
inaccurate to say that the Southern peoples, and in Italy the 
Southern provinces, are not addicted to alcohol in comparison 
with northern populations and provinces 2 but only that they are 
less so), one is unable to explain why alcohol itself, physically 
and morally harmful to individuals, should not have the same 
effect on populations which are but the sum of the individuals.' 
As for the argument based on statistics which calls attention to 
the fact, for example, that there is not a constant and exact agree- 
ment year by year, between the figures for alcohol and crime, it is 
easy to reply: (a) That there is never found in any statistical 
abstract a constant and exact agreement of the figures because 
the interference of individual, physical, and social causes is in- 
evitable in social phenomena: (b) The conclusions drawn from 
partial disagreements (which are unavoidable, since, especially in 
biology and sociology, every rule has its apparent exception, due 
to the action of intervening causes) would be legitimate only if 
it were maintained that alcoholism is the sole and exclusive cause 
of crime. As no one has ever asserted such a thing, all of the 
statistical reasonings of Fournier and Colajanni rest upon an 

1 Rossi, " L'alcoolismo in Europa e gli errori di Colajanni," A. P. (1887), 
VHI, fase. 6. 

2 Thus, for example, the strong proportion of sanguinary crimes in Abruzzia 
is explained in part by the popular habit of drinking distilled wines ("vins cuits") 
with a higher percentage of alcohol, in the same quantities that the neighboring 
provinces drink ordinary wine. In certain regions of Sicily highly alcoholic wines 
are used. 

3 According to the data gathered by Broch, B. I. I. S. (Rome, 1887), II, p. 
389, the annual consumption (of which 95 per cent, is in the form of drink) would 
average for each inhabitant, in liters of pure alcohol, from 1881 to 1885: 

Italy 0.9 Russia 4.2 

Norway 1.7 Switzerland 4.6 

Finland 2.2 Belgium 4.7 

Gt. Britain and Ireland 2.7 Europe (average) 3.3 

Austro-Hungary 3.5 U. S. (average) 2.6 

France 3.8 Holland 4.7 

Sweden 3.9 Denmark 8.9 

Germany 4.1 



§ 172] EQUIVALENTS FOR PUNISHMENT 253 

equivocation and are far from destroying the causal connection 
between alcoholism (acute or chronic from spirits or wine) and 
criminality (especially occasional in acute alcoholism with 
assaults and homicides and habitual in chronic alcoholism, with 
crimes against property, against the person, criminal assaults, 
and resistance to the police), although the figures indicating 
alcoholism as the direct and principal cause of crimes and suicides 
are relatively weak and certainly below the reality. 

§ 172. Alcoholism and Drunkenness. 

Alcoholism, like vagabondage and crime, has always existed 
in various forms: but since 1800 it has become a scourge both 
general and terrible. This is enough to demonstrate that it is 
not the effect of the immoral free will of individuals but that it is 
the reaction and effect of our civilization. Indeed, industrialism 
is the great cause of alcoholism, since it forces the workmen to an 
exhausting and overwhelming toil, which impels them to seek the 
passing and illusory energy afforded by alcohol. On the other 
hand, it is industrialism itself that produces alcohol so cheaply, 
in such quantity, and of such quality (and it is more dangerous 
when made of potatoes and from wood than when made from wine) 
such as past ages, when alcohol was called the water of life be- 
cause it was used simply as a medicine, have never known. There 
existed drunkenness (from wine, beer, cider) but not the alcoholism, 
which Magnus Huss of Stockholm was the first to describe in 
1849-1850. The more or less jovial, bantering, jaunty drunken 
man tends more and more to make room for the pale, irritable, 
brutal drunkard. Drunkenness has always existed, as is proved 
by the legends of the apple of Eve, the soma of India, the mead 
of Northern Europe (probably cider), which are symbols of fer- 
mented drinks. It is thus that an Arab legend speaks of the vine 
"planted by Adam and watered with the blood of the ape, the 
lion, and the swine," an evident allusion to the physio-psychic 
effects of drunkenness. It was also the great vice of the pros- 
perous classes of the Middle Ages. But it practically disappeared 
through changes in social conditions and the adoption of coffee and 
tea since humanity has always shown itself greedy for stimula- 
tion, even resorting (like the savages) to excessive rythmical dance 
movements in the absence of fermented drinks. Alcoholism due 
to liquors (similar to the intoxication from opium, hemp, or mor- 
phine) is, in a greater degree than wine drinking, an obvious 



254 DATA OF CRIMINAL STATISTICS [§ 173 

cause of physiological, intellectual, and moral degeneracy. Few 
men of genius have been alcoholic (Avicenne, Byron, Beethoven, 
Musset, Poe). The most atrocious and the strangest crimes 
(without any apparent cause or motive) are often but the effect 
of alcoholism, particularly in epileptics and epileptoid persons. 
Alcoholism, like every phenomenon of individual and social 
pathology, has anthropological, physical or telluric, and social 
factors. The physiological factor which resists every propa- 
ganda is seated in the need for excitement which is natural to man 
and which becomes chronic when the fatigue and organic exhaus- 
tion of excessive labor impel him to the consumption of alcohol. 
For this reason, alcohol is used with advantage in the treatment 
of certain diseases and during convalescence. 1 The telluric 
factor is in the climate which with greater or lesser cold produces 
a variable organic expenditure and impels to drink. In southern 
countries water is drunk; farther north, wine; still farther north, 
alcohol; and near the pole, oil and fats. 

§ 173. Penal Substitutes. Social Order. Poverty and Fatigue. 

The social factor, on the one hand, may be summed up in the 
two words — poverty and fatigue; on the other hand (among the 
well-to-do classes), it is found in idleness and the feverish struggle 
for wealth. These are the causes which render the need and abuse 
of alcohol chronic and epidemic which otherwise would be in- 
termittent and sporadic. This social factor, particularly in the 
influence of poverty and fatigue, is the only explanation of the ter- 
rible progress of alcoholism since 1850. In some countries, such as 
Sweden, Norway, Denmark, the British Isles, the United States, 
this progress is falling off or the consumption itself recedes (liquors 
are less abused and more beer is consumed) ; but in other countries, 
especially in the North of France and in Belgium, alcoholism has 
taken on truly frightful proportions. At Rouen, for example, it 
has been calculated from the average consumption of alcohol 
(excluding children and two-thirds of the women) that the adult 
men drink every day from a half to three-quarters of a liter of 
liquor. The average annual consumption, expressed in liters, for 
each inhabitant (including women and children) in 1893-94 was: 

1 It has been demonstrated, however, that the influence of alcohol consists in 
a momentary and transitory excitation of muscular effort and of the nervous sys- 
tem, succeeded by a paralyzing reaction. See the R. S. (23 April, 1898), p. 536; 
Danilewsky, "Les effets de l'alcool sur l'organisme humain," in the "Journal de 
la Societe russe d'hygiene publique" (June, 1898). 



§§ 174, 175] EQUIVALENTS FOR PUNISHMENT 



255 



Annual average 

per capita 

1893-94 


British 

Isles 


Denmark 


Germany 


Belgium 


France 


Italy 


Alchohol 
Beer 
Wine 


4 

136 
1 


14 

103 

1 


9 

108 

3 


9 

182 
3 


8 
23 
79 


0.7 
0.8 
110. 



Now, what is to be done in face of this scourge of alcoholism 
which, with abandoned infancy and vagabondage, is a source of 
chronic criminality? A multitude of remedies due to private 
initiative and government action have been proposed and applied; 
but all descended artificially from the top to the bottom, were 
imposed by law, and all forgot and continue to forget the social 
conditions which alone make alcoholism an epidemic scourge. 1 

§ 174. Repressive Remedies. 

These are the most common, the easiest, but also the least 
effective and most stupid. All countries copying England (Acts 
of 1862 and 1892) have provided coercive penalties against drunk- 
ards, sellers of spirits, and makers of alcohol. They have gone so 
far as to declare the drunkard deprived of the paternal authority. 
The judges themselves have become weary of sentencing, as has 
happened in France with the Roussel law, because they see that 
it is absurd to punish the effects so long as the causes are not sup- 
pressed. 2 



§ 175. Relation of Alcoholism and Crime. Fiscal Remedies. 

Under the banner of philanthropy and social hygiene, the min- 
isters of finance in all countries have applied themselves to estab- 

1 An excellent collection of data on penal legislation, other legislative meas- 
ures, the work of private initiative, and the organization of asylums for drunk- 
ards, is given by Vidal, "Enqueue sur l'alcoolisme en Europe et en Amerique," 
"Rev. penit." (1896), p. 1268. 

2 In consequence of the habitual fetichism of penalties, the illusion of combat- 
ing alcoholism with penalties is more or less common to all countries; and every- 
where there are repressive sanctions against drunkenness in public. Thus: the 
(Roussel) law of 23 January, 1873, and Articles 488 and 489 of the new Italian 
Penal Code, — the law of 10 August, 1872, in England, — the law of 28 June, 
1881, in Holland, — of 2 March, 1885, in Luxembourg, — of 19 July, 1877, in 
Austria, — two laws of 1855 on the manufacture and sale of alcohol and the ordi- 
nances of 1871 and 1887, in Sweden, — the law of 16 August, 1887, in Belgium, 
— the penal codes of Germany (§ 361, No. 5), of Hungary (contrav. § § 84, 85), 
of the Canton of Tessin (Art. 427), etc. The "Rapport sur la justice criminelle en 



Q5Q DATA OF CRIMINAL STATISTICS [§ 176 

lishing and creating imposts on the manufacture and sale of alcohol. 
In a few countries (like Belgium) reductions in the taxes on wine 
and beer have recently been enacted (and this is useful in the 
substitution of a lesser for a greater evil). But taxes have also 
been reduced on the so-called industrial alcohols which are still 
sold in the drinking places where they are transformed into more 
or less drinkable, but doubly toxic liquids. 1 The principal effect 
of these imposts is to make alcoholic drinks more unhealthful 
by lowering their quality, and hence more dangerous in poisoning 
the public, since the social conditions impelling the people to con- 
sume liquor remain. It has even been carried to the extent (in 
Switzerland and in the four eastern provinces of Russia and 
elsewhere) of a State monopoly of alcohol; but not even that is the 
remedy for alcoholism. The statistical decrease observed in 
Switzerland is probably but an optical illusion, because the 
figures were very inexact before the monopoly. Since the mon- 
opoly, the average consumption has remained almost constant 
from six and two-tenths liters in 1888 to six and three-tenths 
liters in 1894. 2 

§ 176. Relation of Alcoholism and Crime. Remedies of Regulation. 

There are restrictive measures on the sale of alcoholic bever- 
ages, — measures which range from absolute prohibition (system 
of the State of Maine) to the exploitation of the traffic by temper- 
ance associations (Gotheburg system), 3 which have employees 
at a fixed salary, and hence with no personal interest to increase 
the sale of liquor, but with a profit-sharing interest in the larger 
sale of health drinks, — coffee and tea. There are other police 
or fiscal restrictions with the obligation to pay a license for open- 
ing a drinking place; legal limitation of the number of inhabitants; 

France pour 1887," showing a decrease of prosecutions for public drunkenness 
(which declined from a yearly average of 81,146 for the period 1873-75, to 67,155 
for the period 1881-85, and to 59,098 for 1887), concludes that the decrease of pros- 
ecutions does not represent a decrease of drunkenness but only a lesser severity on 
the part of the authorities (Paris, 1889, p. xxxviii). 

1 For France, see Meilhon, "Legislation relative a ralcoolisme,'' A. M. P. 
(April, 1895); and for Italy, Celli, "Alcoolismo e fiscalismo in Italia," in the "Rin- 
novamento economicheo amministrativo" (July, 1895). 

2 Nevertheless, the monopoly seems to be the least evil of the fiscal remedies 
especially when as (recently proposed in Belgium, after a similar example afforded 
by Norway) the profits of the monopoly are employed by the terms of the law in 
the betterment of the material and moral condition of the lower classes. 

3 Wieselgren, "Resultats du systeme de Gotheburg" (Stockholm, 1898) . 



§§ 177, 178] EQUIVALENTS FOR PUNISHMENT 257 

obligation imposed on hotel and saloon keepers of paying indem- 
nity to the families of drunkards to whom liquor has been sold 
when they were already drunk; the exclusion from membership 
in labor associations of persons who drink to excess. The imagina- 
tion can invent hundreds of measures of this kind, but the effect 
is always the same. Even the number of places of sale has no ap- 
preciable influence on the consumption of alcohol. In Holland, 
for example, there is a place of sale for each one hundred and 
ninety-two inhabitants and in Belgium, one for every thirty-five; 
and yet the average consumption is about the same (nine liters) 
in both countries. 

§ 177. Relation of Alcoholism and Crime. Psychological Remedies. 

These have their utility since they tend to spread total or par- 
tial abstinence, through a propaganda in the schools, churches, 
popular associations, and committees. We have the example of 
Father Matthew in Ireland, in 1847, — after which, however, the 
Irish drank ether, arguing that Father Matthew preached only 
against the use of gin. There are also, particularly in Anglo- 
Saxon countries, temperance societies, generally composed of 
women who employ all sorts of means of propaganda from lessons 
in the elementary schools to grotesque and discordant orchestras 
playing before the bars and places where liquor is sold. But 
these remedies represent an enormous (though admirable) expendi- 
ture of energy and effort to obtain very slight and uncertain re- 
sults which cannot cope with the terrible and incessant influence 
of the social conditions, favorable to alcoholism. It is always 
useful, however, to make a propaganda against alcoholism, like 
that carried on by the Belgian socialists where the "stores of the 
people" do not sell liquor. For, it is certain that if people are 
convinced of the evils produced by alcoholism, this conviction 
will favor the very influence that improved social conditions can 
exert. 

§ 178. Relation of Alcoholism and Crime. Therapeutic Remedies. 

Aside from the houses of forced reclusion for delinquents in a 
state of habitual drunkenness, 1 there are free drunkards' asylums, 

1 There was in England the Habitual Drunkard's Act of January, 1880 (re- 
viewed in A. H. P., Nov., 1882); and it has been imitated in an incomplete way 
(as is our habit) and without practical application by Art. 48 of the Italian Penal 
Code. 



258 DATA OF CRIMINAL STATISTICS [§ 179 

tried for the first time at Lintorf, in Prussia (1891), later in 
America, England, Austria, and Switzerland. 1 But these es- 
tablishments, unless the efforts of serotherapy against alcoholism 
should succeed, 2 are of very limited efficacy, because they can 
only serve a few hundred of individuals of the more comfortable 
classes while drink is a scourge that smites millions of men. All 
of these remedies can be but transitory and of limited efficacy, 
since for alcoholism (as for neglected childhood, vagabondage, 
and, hence, for crime) there is only one remedy. It is the social 
remedy, i. e. the raising of the standard of the life of the people 
(shorter hours of labor, better wages, more attractive family life, 
healthy amusements, such as theaters in place of saloons and 
drinking places, and so on). As to the well-to-do classes, they 
will be cured of alcoholism when they shall have been cured of the 
mania for wealth which makes the struggle for existence feverish 
and sad and which always urges to the mania for theft under every 
form of fraud. It is only through a new orientation of society 
and, hence, of political and moral conditions, that we shall see 
the disappearance of alcoholism, that terrible source of crime, 
against which during the period of transition it is none the less 
necessary to bring to bear the organized mass of the less illusory 
of the remedies which we have mentioned. 

§ 179. Penal Substitutes. Economic Orders in General. 

Let us continue the enumeration of the equivalents for penalties. 
The substitution of a metallic coinage for paper money singularly 
reduces counterfeiting, which has resisted the maximum sentences 
to hard labor. It is easier for most people to detect a false coin 
than a counterfeit bill. 3 The commerce in money and precious 
metals has had a greater influence than penalties, on the increase 

In Switzerland, the penal codes of Berne (Art. 47), of Neuchatel (Art. 204), 
and a law of St. Gall (May, 1891), and Art 28 of the draft of the Swiss Penal Code 
regulate these asylums for drunkards. Drafts of laws have been submitted in 
Germany (1894), and in Norway (1896). 

1 Ladame, "De l'assistance et de la legislation relative aux alcooliques." Re- 
port to the "Congres des medecins alienistes," at Clermont-Ferrand, 1894. 

2 Id., the "Revue des Revues," 15 Dec., 1898, p. 647, and 1 Jan., 1899, 
p. 103. 

3 Crimes against the currency are less in the total of convictions for crime in 
France and Belgium than in Italy where the use of paper money is more general. 
Special statistics for criminal prosecutions in Italy for uttering and circulating false 
bank bills from 1866 to 1878 are found in the "Annales de statistique" (1880), 
Vol. 15, pp. 311 et seq. 



§ 179] EQUIVALENTS FOR PUNISHMENT 259 

and decrease of usury. Spain experienced this after her American 
conquests, 1 and it is proven also by the history of penalties in 
the Middle Ages, which did not prevent the continual reappearance 
of usury under the forms of various devices such as " anacorisme," 
the "contrat mohatra" and the tri-lateral contract. In our 
own times, institutions of popular and agricultural credit, and 
rural banks and similar economic (but not penal) measures 
would be much more effective against usury than the exceptional 
laws of repression enacted a few years ago in Germany, Austria, 
and Hungary. 2 Again, if the ratio of interest of public secu- 
rities were lowered the current of capital would flow into com- 
merce and industry and thus would be prevented the crimes of 
bankruptcy, fraud, forgery, which are, at least in part, the conse- 
quence of an insufficient flow of capital. In like manner, against 
the crimes of the banks and panamism, 3 economic measures 
dealing with speculation, the stock exchanges, and the regulation 
of the banks, etc., would be more efficacious than the Penal 
Code which is always inadequate against "malefactors of great 
wealth." 4 Salaries proportionate to the needs of public function- 
aries and to the general economic conditions will cope with spec- 
ulations and corruption generally due directly or indirectly to 
money difficulties. Limited hours of service in the departments, 
on which public safety depends, will prevent more disasters than 
prisons with which those guilty of involuntary homicides are 
threatened. An example is the collision between trains which hap- 
pened near Milan in September, 1881, by reason of an overworked 
railway employee who had fallen asleep; a prison sentence (I am 
unable to say whether more unjust than it was useless) did not 
prevent it. The development of good roads, metalled highways, 
economic railways, tramways, and the concentration of inhabited 
centers, cause the diappearance, as Despine and Lombroso re- 
mark, of the association of malefactors and bands of criminals, 
at the same time making acts of brigandage and armed robbery 
rare. 6 The distribution of wood during the severe winters in 

1 Montesquieu, "L'Esprit des lois," Lib. XXII, Chap. VI. 

2 Vidari, " Di alcune nuove leggi contro l'usura," in the "Annuario delle scienze 
giuridiche" (Milan, 1881); Morpurgo, "La criminalita nei contadini del Veneto," 
in the "Atti della giunto per l'lnchiesta Agraria" (Rome, 1882), IV, fasc. I. 

3 The author probably means stock-jobbing of the French Panama order. 

4 Laschi, "La delinquenza bancaria" (Turin, 1899). 

6 In Sicily, for example, brigandage thrives not only from favorable ethnic 
and social conditions but by reason of very poor roads. 



260 DATA OF CRIMINAL STATISTICS [§ 179 

the poor villages was tried by Cardone, the King's procurator at 
Bergane, and he thus opposed rural robberies with a much more 
efficient obstacle than that of gendarmes and jails. So, also,, the 
construction of houses and wide streets, the extension of street 
illumination, the suppression of ghettos and other sordid quarters, 
the establishment of night refuges, 1 are better for the prevention 
of burglaries, robberies, assaults, and the receiving of stolen goods, 
than all the agents of public safety. We read, for example, in 
the diary of Roncalli, 2 that in 1852 "by order of the pontifical 
government four great lights were placed in St. Peter's Square, 
and this measure was taken to prevent villainies. It was no- 
torious that many persons went to the Square of St. Peter on dark 
nights to commit acts contrary to good morals." Many rob- 
beries and other crimes would be prevented if all of the houses 
were so constructed that in order to reach the apartments one must 
pass the lodging of the concierge. In many cities the use of a safety 
chain on the doors of apartments is an effective obstacle to burgla- 
ries and robberies. The use of the Roentgen Rays in the examina- 
tion of baggage, already tried in France, prevents the myriad of 
frauds on the revenue and local imposts which even "honest 
people" often commit, and sometimes as a protest against vexa- 
tious laws. Cheap workingmen's houses, and in general, sanitary 
police regulations seriously applied to both city and country 
dwellings, by preventing the excessive huddling together of poor 
families, would improve their physical hygiene, and at the 
same time avoid a mass of immoral and guilty acts. 3 Coopera- 

1 For instance, Rowton House, in London, (see the "Scuola positiva,'' July, 
1898), which it has been attempted to imitate, on a worthy initiative, in the crea- 
tion of an "albergo popolare" in Milan. 

3 Roncalli, "Cronaca di Roma dal 1849 al 1870." 

3 Brouardel, in his commentaries on Hofmann's "Nouveaux elements de mede- 
cine legale" (Paris, 1881), pp. 726 and 721 writes: "Very often, it is on their sons 
and daughters that the accused have committed criminal assaults." Tardieu, in 
"Attentats aux mceurs," speaks of incests between brothers and sisters provoked 
by the same cause. And to the same effect is Annechino, "Incestuosi d'occasione," 
in the "Anomalo," Sept., 1898. Du Mesnil, " L'habitation du pauvre a Paris," 
in the "Annales d'Hygiene publique" (Jan., 1883), records that in five arron- 
dissements of Paris, while the number of popular lodging-houses increased from 
2,621 in 1876 to 3,465 in 1882 (32 per cent.), the number of persons in these tene- 
ments rose from 42,821 to 82,380 (95 per cent.). Bex, "Logements ouvriers en 
Allemagne" (id., Aug., 1882), says that six and even eight lodgers crowd into a 
small room with the proprietors and "it is said that in Rhenish Prussia the lessor 
not only permits the adulterous relations of his wife with the lodgers but stipulates 
in the contract, in a more or less disguised way, for a special compensation." See, 
also, the investigation of workingmen's habitations by Freese, "Wohnungsnot und 



§ 180] EQUIVALENTS FOR PUNISHMENT 261 

tive and Mutual Assistance Societies, Provident and Old Age 
Funds, Funds for disabled workmen, Civil Liability of employers 
and masters, better and more promptly applied in industrial 
accidents, commercial and savings banks for the people, Com- 
mittees on Employment, giving assistance in the form of labor, 
— would also, better than the penal code, prevent a multi- 
tude of occasional crimes against property and the person. In 
this connection I have stated in Parliament that the reform of 
the Pious Works should place in the hands of the government 
and of its administrators an immense force with a capital of two 
milliards, in the prevention of a great number of crimes if good 
use were made of it. Also all of the measures suited for the 
prevention of begging and vagabondage are but equivalents for 
penalties in the crimes which in general are not serious but are 
very frequently committed by vagabonds and beggars. These 
measures should use jails as little as possible and should exist 
in agricultural colonies, as in Holland, Belgium, Germany, and 
Austria. 

§ 180. Vagabondage and Crime. 

Together with alcoholism and neglected childhood, vaga- 
bondage, generally accompanied to some extent by begging, is an 
abundant source of crime, constituting, as it does, an intermediate 
zone between the unemployed and the criminal. The essential 
characteristic of vagabondage is not idleness. Its specific char- 
acteristic is rather lack of domicile (which, however, tends to disap- 
pear as an attribute of vagabondage) and the lack of the means 
of existence which is its predominant note. There are idlers both 
with and without fixed domiciles who are not legally speaking, 
vagabonds, since they do have means or fortunes even, and yet 
who live without working. Like every other phenomenon of 
social pathology, vagabondage has its anthropological factors 
(a kind of biological debility, of neurasthenia or psychasthenia, 
which cause an invincible repugnance to all methodical work and 
which may even become pathological forms of ambulatory autom- 

Asatzkrisis," in the "Jahrbuch fiir Nationaloek. und Statistik," 1893, p. 661; and 
Booth, "In Darkest England" (London, 1894). This situation which recalls the 
sexual promiscuousness of certain savage tribes noted by Letourneau in "La socio- 
logie d'apres l'ethnographie" (Paris, 1880), pp. 53-58, is the infamous mark of 
our civilization in the poor quarters of the richest cities, even in our country, for 
which it is only necessary to mention the "bassi" and the "fondaci" of Naples, 
described by Villari, Mario and many others, which under other names, but with 
little fundamental difference, are found in all the large cities. 



262 DATA OF CRIMINAL STATISTICS [§ 180 

atism) ; 1 its physical factors (principally the climate, which, 
if mild, makes life alimentative and sleep easier); and its social 
factors (working conditions more or less assured to every healthy 
adult man) . In order to understand the relation between vaga- 
bondage and crime and to indicate the remedies, one should re- 
trace its evolution guided by the excellent study made by Florian 
and Cavaglieri. 2 While crime is the indirect reflection of social 
and economic conditions, vagabondage is their immediate reflec- 
tion. Vagabondage was a perfectly normal fact in its primitive 
phase during the thousands of centuries when nomadic humanity 
lived from the chase, fishing, and grazing. When, however, primi- 
tive humanity passed into the agricultural stage (with the economic 
and social institution of slavery) the attachment of man to the 
soil becomes a social institution which involves the prohibition of 
emigration, and vagabondage then becomes anti-social. Fugitive 
slaves were really the first vagabonds, pursued and punished 
as delinquents. They became more and more numerous until 
the decline of slavery changed nearly all of them into an over- 
flowing horde of vagabonds, to which the monasteries and the 
juridical institution of serfdom 3 opposed but an inadequate re- 
sistance. In the first half of the Middle Ages, during the 
communal period, the communes became more and more the 
refuges for serfs who had escaped. Thus infant industry sub- 
stituted the urban servitude of the shop for the rural servitude of 
the soil. In the second half of the Middle Ages, the spread of 
commerce, the frequent wars (which transformed soldiers of for- 
tune into vagabonds and brigands), and even the mendicant 
orders (founded by Francis d'Assisi), gave a new extension to the 
phenomenon of vagabondage, which reached its crest during the 
two hundred years between 1500 and 1700. During this period, 
which precedes the formation of great industrialism, the pro- 
gressive concentration of landed property took place, and the 
peasants were driven from their land, which was turned into 
pastures and parks. "Sheep have eaten the men," was heard in 
England, whose laws against vagabondage were cruel to the last 

1 Pitres, "L'automatisme ambulatoire,'' in the "Revue des Revues" (1 May. 
1896); Astor, "Le vagabondage pathologique," in the "Rev. penit." (1896), 
p. 547; Drewarte, "De l'origine epileptique de l'automatisme," in the "Progres me- 
dical" (1895), 46, and A. M. P. (November, 1898), p. 465. 

2 Florian and Cavaglieri, "I vagabondi," in the S. P. (May, 1894), and Vol. I 
(Turin, 1897); Vol. II (Turin, 1900). 

3 "Servitude de la glebe." 



§180] EQUIVALENTS FOR PUNISHMENT 263 

degree. And yet vagabonds were only peasants without employ- 
ment, because of the change in rural development through the 
spread of great pastures and of landlordism, which also was es- 
tablished by usurping the communal lands for private profit, 
after dispossessing the proletariat. In this period modern in- 
dustrialism began with the necessary accompaniment of two 
social phenomena : the mobility of the workman (who could leave 
one shop for another, or go from one province to another) and 
the army of unemployed necessary for the maintenance of wages 
at a level advantageous to the capitalists. Then, since 1500, we 
see the national and international immigrations and emigrations 
of workmen and peasants becoming more and more frequent and 
considerable. In turn, the unemployed became numerous, follow- 
ing in this the progress of machinery, and they are the victims of 
over-production and under-consumption. There was a sad and 
living sign of this state of social pathology when Coxey's Army, 
one hundred thousand strong, marched on Washington from all 
parts of North America. Lawmakers have adopted preventive 
and repressive measures, always penal, against vagabondage. 
The Belgian law of 1891 (modified by the law of December, 1896) 
is a very remarkable example with its classification of vagabonds 
as vicious and chronic (interned in the almshouses), occasional 
vagabonds (interned in the houses of refuge), and juvenile vaga- 
bonds (interned in charitable settlements). 1 The purpose of 
this law was the substitution of surveillance for punishment; 
but the law actually answered this purpose very incompletely, 
since vagabondage is beyond law of repression and preventive 
police. It tends to become normal again, as it was in primitive 
humanity, thus giving a new instance of the law of apparent re- 
gression. 4 The journeys of the rich, of merchants and working- 
men, increase with the development of industry. In England, for 
example, there is a yearly average of seven hundred and seventy- 
five million travellers, while in Russia, with four times the popu- 
lation, it is only thirty-eight million. It is impossible, therefore, 
for penal laws to suppress or even diminish the phenomenon of 
vagabondage, which, by again becoming normal, tends to sepa- 
rate from atavistic or ordinary criminality and more and more to 
approach evolutionary or politico-social crime. Some countries 
have substituted in place of penal and police regulations economic 

i Le Jeune, "I vagabondi nel Belgio," S. P. (1894), p. 351. 

2 See Ferri, "Socialismo e scienza positiva," 2d ed., and P. Ill, post. 



264 DATA OF CRIMINAL STATISTICS [§§ 181, 182 

measures such as labor settlements for the unemployed, houses 
of refuge, and relief-stations for neglected childhood and 
travelling workmen, as in Germany. 1 Furthermore, the only 
radical remedy for vagabondage, as for alcoholism, must be 
a new economic organization, which, by suppressing the causes 
of unemployment and vagabondage (except the isolated and rare 
cases of pathological vagabondage), will be able to suppress its 
more or less demoralizing and crime-breeding effects. When the 
socialization of labor (with the socialization of the means of pro- 
duction) gives every man not only the right but the duty of labor, 
vagabondage, in its present epidemic form, will be no longer 
possible. 

§ 181. Penal Substitutes. Economic Order. Conclusion. 

As to the economic order, it may be said that a sagacious social 
legislation, not restricted to innovations of form rather than sub- 
stance, and seriously applied, would constitute (and England to-day 
gives evidence of it) a real code of equivalents for penalties, which 
could advantageously cope with the totality of criminal impul- 
sions that determine the abnormal economic conditions of the 
most numerous classes. 

§ 182. Penal Substitutes. Political Order. 

In the prevention of political attempts, regicides, revolts, con- 
spiracies, and civil wars, where penal repression and empirical 
police prevention are powerless, everything is possible to a na- 
tional government with regard for public liberties. 2 To prevent 
the so-caUed crimes of the press, which under other names resisted 
the stake of the Middle Ages, penalties, which only added fuel 

1 "Le stazioni di soccorso per operaji in Prussia," in the "Rivista di benifi- 
cenza pubblica" (February, 1896); De Palligny, "Gli asili notturni a Parigi e l'as- 
sistenza per mezzo del lavoro," id. (February, 1898); Ruspoli, "Les 'Rowton 
houses' a Londra," S. P. (July, 1898); Oubert, "Des moyens de prevenir et de 
reprimer le vagabondage et la mendieite," a study in comparative legislation 
(Dijon, 1898); Robin et Drion, "Rapport sur les mesures, soit d'assistance, soit de 
repression, a l'egard des mendiants et des vagabonds," B. U. I. D. P. (1894), IV, 
pp. 342 and 347. The subject was discussed at the session of the International 
Union for Penal Law, at Paris (1893), but no conclusions were reached. See the 
discussion in the B. U. I. D. P. (1894), IV. pp. 376 et. seq.; Crisenoy, "Rapport 
sur la suppression du vagabondage," in the "Rev. penit." (January and April, 
1898); L. Riviere, "Le vagabondage et la police des campagnes," id., 1898, 
p. 498. 

2 Ferri, "Contro l'utopia reazionaria,'' a parliamentary speech in "Una cam- 
pagna ostruzionista" (Milan, 1900). 



§182] EQUIVALENTS FOR PUNISHMENT 265 

to the fire and which are odious when inflicted on honorable 
men, can advantageously be replaced by full liberty of opinion, 
permitting society to expand less violently, and giving it a less 
unstable equilibrium. This was recently proven in France dur- 
ing the grave political and anti-militarist agitation caused by the 
Dreyfus case. Respect for law spreads among the people less 
because of police and jails than because of the example given by 
persons in high places and by the authorities themselves, when they 
are the first to put into practice respect for individual and social 
rights and strict application of the law to any one who violates it, 
thus avoiding the scandals of impunity for the big thieves and the 
most iniquitous severity for the little ones. 1 Of what use would a 
penal code be against election frauds and other crimes? The sole 
remedy is a good electoral reform which, by being in harmony with 
the needs and tendencies of the country will prevent, instead of 
inciting, material and moral disorders. In the prevention of po- 
litical crimes in general (beyond the economic measures already 
indicated which are appropriate to make less miserable the life of 
the most numerous social classes) and better than the Penal Code 
would be political and parliamentary reforms, which by making 
the legal representation really more representative of the coun- 
try, would take from the assemblies the occasions and forms 
which favor abuses or destroy their power. They would remove 
the injurious influence of political preoccupations on technical 
questions and, further, would give to the whole people a more 
direct participation and authority in public affairs, for instance, 
through the referendum or similar means. 2 Finally, epidemic 
crime, such as the Camorra and the Maffia, 3 which proceeds from 
the fact that the needs and the particular characters of different 
parts of a country are not satisfied and understood where there is 
variation of climate, race, traditions, language, customs, and 
interests, would disappear for the greater part, if the metaphysical 
mania for political symmetry, centralization, and despotism were 
renounced. National unity has nothing to do with legislative and 
administrative uniformity, which is only its pathological exag- 
geration. It is natural that laws which actually represent only 

1 Laschi, "La delinquenza bancaria." 

2 Lombroso and Laschi, "Delitto politico," pp. 467 et seq., have proposed a real 
code of equivalents for penalties in the economic and political prophylaxis of 
political crime. 

3 Allongi, "La Maffia" (Turin, 1887); "La Camorra" (Turin, 1890), Cap. 

VII. 



266 DATA OF CRIMINAL STATISTICS [§ 183 

a means of compromise between moral, political, and economic 
necessities, quite different in different regions, should almost 
always be ill adapted to social needs, too narrow and backward 
for one part of the country and too broad and premature for 
another, like the clothing issued to conscripts which is too small 
for the big men and too large for the little ones. Administrative 
federalism together with political unity ("e pluribus unum") 
would effectuate a real code of equivalents for penalties, as Eng- 
land again has demonstrated with its lively local autonomies. 1 
It would restore to each part of the social organism the relative 
liberty and independence of movement which is a universal law of 
biology and sociology (since every living organism is but a federa- 
tion of divers elements) and which is stifled and atrophied by the 
leaden cloak of a uniformity that in Italy has been the inevitable 
reaction of her recently reconquered unity, and threatens in time 
to become more unbearable and more fatal to the very national 
unity which it is thought to strengthen by such means. 2 

§ 183. Penal Substitutes. Scientific Order. 

If civilization has introduced new instruments of crime, fire- 
arms, the press, photography, new poisons, dynamite, electricity, 
hypnotism, and microbe infection, science itself, sooner or later, 
introduces new antidotes much more effective than penal repres- 

1 Bertolini, "II governo locale inglese e Ie sue relazioni colla vita nazionale" 
(Turin, 1899), Vol. II. 

2 Apropos of the uniformity of penal laws which was one of the strongest polit- 
ical motives for the approval of the new Penal Code, and which was a symbol of 
national unity, could not and should not have been avoided since it is only the 
exaggeration of the unity which can bring about a reaction in the federalist sense 
as shown in France and Italy to-day. Carrara, "Lineamenti di pratica legislativa 
penale" (Turin, 1874), p. 393, maintained that it is unjust and useless to submit 
different provinces to the identical penal law; in this he was guided by his concern 
lest the death penalty be restored in Tuscany, as had been proposed at a certain 
time. 

On the contrary, the positive school from general reasons of sociology concurs 
in condemning legislative uniformity. Thus, Garofalo, " Criminalogia, " p. 201, 
agrees with the observations which I have just made and which were later devel- 
oped by Lombrosi and Rossi, "Sul regionalismo in Italia," iu the "Appunti al 
nuovo codice italiano" (Turin, 1889), 2d ed., pp. 62 and 85. To the same effect, 
Lombroso and Laschi, "II delitto politico"; Niceforo, "LTtalia barbara contem- 
poranea." 

In France the same order of ideas is sustained by Donnat, "Politique experi- 
mentale" (Paris, 1885); Bordier, "La vie des societes" (Paris, 1887), I, Chap. 
XVIII; Desmoulins, "A quoi tient la superiorite des Anglo-Saxons," (Paris, 1897); 
De la Grasserie, "L'fitat federatif" (Paris, 1897). For Spain, see Pi y Margall, 
"Les nationality " (Paris, 1879). 



§184] EQUIVALENTS FOR PUNISHMENT 267 

sion. The press, photography, anthropological measurements of 
prisoners, graphology, Roentgen rays, telegraphs, and railroads 
give powerful aid to honest citizens. Necroscopists and toxi- 
cologists prevent poisonings. It has been already shown that 
the invention and general use of the Marsh apparatus has ren- 
dered less frequent the formerly numerous poisonings with 
arsenic, by facilitating the proof. 1 A kind of Marsh apparatus is 
now suggested for written forgeries, whereby the suspected docu- 
ments are subjected to the fumes of iodine, a process which 
reveals the erased and newly-written characters. 2 The practice 
of medicine by women will suppress many of the occasions of 
crimes against morals and the family. The free discussion of any 
idea, by obscuring the halo of certain seductive theories will 
prevent their inconveniences better than more or less scandalous 
processes. Piracy, which resisted all the penalties of the Midde 
Ages, disappeared with the use of steam in navigation. The use 
of personal letters of credit by making useless the frequent trans- 
portation of currency is better adapted, than are penalties, to 
the prevention of thefts with or without violence. To prevent 
forged signatures on letters of credit, it is proposed that there 
be a certificate of authentication, given by an employee of the 
bank or commercial house, who shall state that he has seen the 
real debtor sign it. 3 In some banks, automatic instantaneous 
photography is used to record the features of persons who come 
to the windows to bank considerable sums. We might further 
mention the mechanisms against thieves, such as safes, safety 
locks, and alarm systems. It has been recognized that in pre- 
venting railway murders, alarm signals and the different systems 
of inside locking placed in the cars for the use of passengers, are 
worth more than the galleys. 

§ 184. Penal Substitutes. Civil and Administrative Order. 

A sagacious testamentary legislation is better than a penal 
code in preventing murders caused by the desire to inherit. Con- 
sider, for example, the testamentary powers in France since 1800. 
Suitable provisions with respect to the capacity of paternal 

1 Carrara, "Programme," § 1184, note 1, calls attention to the fact that poi- 
sonings have become rarer rather on account of the progress of chemistry which 
reduces the chances of impunity, than on account of the severity of the penalties. 

2 Bruylants, "Alterations frauduleuses des Ventures," E. S. (17 January, 1891). 

3 "Credito e cooperazione" (Rome, 1 November, 1890). 



268 DATA OF CRIMINAL STATISTICS [§ 184 

consent to the marriage of children, to which Herschell 1 drew 
attention, in connection with the countries where the consent of 
both father and mother is necessary, and the necessity of carry- 
ing out promises of marriage and of supporting the children 
born of a seduced and abandoned mother, are excellent antidotes 
against concubinage, infanticide, abortions, criminal assaults, and 
homicides caused by the undeserved abandonment of women. 2 
Bentham said in this connection that a legally tolerated and 
regulated concubinage would be less harmful than that which 
the laws do not recognize and are unable to prevent. 3 The facility 
of civil justice and its quasi-inexpensiveness and, hence, a greater 
development, under prudent safeguards, of the institution of 
justice of the peace, would prevent attempts against public order, 
against the person, and against property. In Italy, a reform with 
a recoil was introduced when a great number of the prefectures 
were abolished,, which in the distant centers were the only sign 
of civil life, and by aiding the administration of justice prevented 
retaliation, the arbitrary exercise of personal rights, and affrays. 
So, also, an advocate for the poor replacing the derisive services 
of our unpaid perfunctory attorneys, would make the defense 
of invaded rights and interests effective, easy, and prompt, and 
in constituting a sort of judicial tribunal with authority equal to 
that of a Public Ministry, but with a popular character, would 



1 Herschell, "Theorie des probabilites," in the second edition of 
"Physique sociale." 

2 Tissot, "Introduction a l'etude du droit penal"; Giuriati, "Le leggi dell' 
amore" (Turin, 1881); Rivet, "La recherche de la paternite" (Paris, 1890), rightly 
insisted on this reform, if only for its preventive effects against the revenge of 
girl-mothers, although he relies too much on sentimental arguments as Sighele 
says in the "Archivio di psichiatria" (1890), XI, 570. Dumas, in the preface to 
Rivet, disabusing himself of his famous little work on the subject, has placed in 
doubt the utility of this measure, which according to some would increase illegi- 
timate births (see MasS Dari, "Ricerca della paternita e noscite illegittime," 
" Archivio psichiatro," XI, 56); but aside from reasons of social justice which re- 
quire that every one shall be responsible for his acts, it is certain that proof of pater- 
nity, under safeguards to prevent its abuse, would prevent murders, infanticides, 
and abandonment of infants, which are really a greater evil than the possible ille- 
gitimate births. Proof of paternity is in all cases forbidden by the codes of France, 
Belgium, and Holland, and of the cantons of Geneva, Tessin, and Neuchatel. It 
is permitted in all cases by the codes and laws of Austria-Hungary, Sweden, Portu- 
gal, England, the United States, Baden, Bavaria, Prussia, Saxony, and a large 
number of Swiss cantons. It is permitted in Spain, except in the case of adultery 
and incest. It is forbidden, except in the case of abductioa or rape, in Italy, Bo- 
livia, and Serbia. Russian legislation does not treat of it. 

3 Bentham, "Treatise on Legislation," Part IV, Chap. V; Carrara, "Opusculi," 
IV, op. 10. 



§ 184] EQUIVALENTS FOR PUNISHMENT 269 

be an excellent preventive remedy against a mass of vengeances, 
vexations, and abuses. A remedy will also be found in a strict 
and expeditious system of reparation to the victims of crime, 
a system to be considered as a social function confided to the 
public ministry in cases where the persons injured do not know 
or are unable to validate rights too often neglected. 1 The sim- 
plification of legislation will prevent many frauds on citizens, 
who, despite the legal presumption that ignorance of law is no 
excuse (while in reality, there is no one who knows all the laws of 
his country), cannot know the whole intricacy of promulgated 
laws wherein there are pretexts for so many citations and spolia- 
tions. 2 Commercial laws on the civil responsibility of adminis- 
trators, on bankruptcy procedure and practice, on industrial 
detective exchanges for information and vigilance, are better 
preventives of fraudulent failures than hard labor. 3 Juries of 
honor, legally recognized and encouraged, could oppose a more 
serious obstacle to the duel than ridiculous penalties. 4 A well- 

1 See P. IV, ■post. 

2 Spencer, "Essays — Too Many Laws," II. 

3 Filangeri, "Scienza della legislazione," Lib. II, Cap. XXIV; Ferrario, "I 
fallimenti" (Milan, 1879); Longhi, "La bancarotta" (Milan, 1898), pp. 229, 230. 

4 Duelling, which, in spite of the death penalty, torture, and the Draconian 
edicts of Charles IX, Henry II, Louis XIII, and Louis XIV in France (examples 
followed elsewhere), flourished in the past centuries, has almost disappeared in 
Europe, now that the penalties are so reduced, and is unknown in England, due 
solely to public opinion. In the Prance of to-day it is not noticeable that they in- 
crease remarkably when the jury leaves them unpunished; nor do they become 
more rare when the jurisprudence profits by the silence of the Code on this ques- 
tion, to assimilate them to voluntary homicides. And yet some people in France 
imagine that a special law (offered 3 Dec, 1889, by the Deputy Cluseret) could 
offer an efficient remedy. The habit of considering punishment as the only rem- 
edy for crime is so deep-rooted that not only did Schopenhauer, in his "Apho- 
rismus,'' suggest the infliction of a dozen blows with a rod in the Chinese fashion 
for every one who sends or accepts a challenge, but even the drafts of the Italian 
Penal Code increased the penalties for duelling; the Senator Chiesi would have 
made them still more severe in accordance with the inveterate illusion that the 
frequency of delicts comes from the mildness of the penalties (Actes du Senat, 
Legisl. XII, Vol. II, p. 1078). These provisions, thanks to the fines with which 
duelists are menaced, constituted » less ridiculous sanction against this delict. 
But the detention imposed is illusory since the remedy is entirely outside of the 
Penal Code. Vigliani had suggested that the effects of the duel, if it had not first 
been submitted to a jury of honor, should be punished like ordinary homicides 
and woundings; in this way the law would have the advantage of in some degree 
encouraging juries of honor; this provision was, however, suppressed in later modi- 
fications. It seems to me that it would be more useful to say: Duels which a jury 
of honor has declared unavoidable are not punishable. The duel which in serious 
cases, among the Latin and Germanic peoples, cannot be prevented by the fear of 
punishment alone, would serve in turn, when 'favored with this conditional im- 



270 DATA OF CRIMINAL STATISTICS [§ 184 

organized notarial system combats documentary forgeries and 
frauds in the same way that Bureaus of civil status have almost 
caused the disappearance of falsification relative to persons and 
the substitutions and suppressions of children, so frequent in 
the Middle Ages. 1 And if, as the Deputy Miquelin proposed, 
there were written on the birth register of every person his civil 
status, many bigamies could be avoided, since it would appear 
upon the birth certificate of the person desirous of marrying 
without any further investigation, whether he were free to marry 
or not. 2 A more intelligent medical examination of conscripts for 
nervous and morbid ailments would prevent a number of crimes 
which are often very serious, such as misdeism. Carrara 3 re- 
marks that a great number of calumnies and false denunciations 
are avoided by public accusatory process. The foundling homes, 
orphanages, or still better, some of the belated successors of these 
institutions, maternity wards and aid at home for girl-mothers, 
can prevent many infanticides, abandonments of infants, and 
abortion, which resist the severest penalties. By putting an 
end to the crowding of prisoners, by abolishing the so-called 
remedies of admonition, surveillance, and forced domicile, by sup- 
pressing the pitiable absurdity whereby the prison is preferable, 
in point of comfort and diet to the garret of the honest work- 
man or to the cot of the field laborer, — there would be a reduc- 
tion in the number of crimes which are often committed by the 
unfortunate in order to find food and covering in prison and to 
escape the vexations of police surveillance. Prisoners' aid socie- 
ties for liberated convicts, and especially those for juveniles, can 
usefully replace penalties, although of less efficacy than is gen- 
erally believed. They have against them the thought that it 

punity, to take the place of penalties for sanguinary affrays and revengeful assas- 
sinations, which are only too frequent in some regions: it would be a relative im- 
provement in comparison with these brutal acts of violence. See Zani, "II diritto 
secondo la legge di evoluzione" (Mantua, 1881), p. 27; Berenini, "Sul duello," 
A. P., V. 2, 1884; "Offese e difese" (Parma, 1886), pp. 49 el seq.; Tessier, 
"Du duel" (Lyon, 1890). 

For my own part I think that I have done something more efficacious against 
the duel by giving the example on several occasions of declining, without much re- 
gard for chivalrous ceremony, challenges which were sent me by two deputies. 
The history of England from 1800 to 1850 proves to us that a courageous example 
in high places is the best way to deprive the duel of its barbarous halo and make 
this sufficiently grotesque and often indirectly criminal custom fall into disuse. 

1 Ellero, "Opuscoli criminali" (Bologna, 1874), pp. 62, 77. 

2 A. A. C. (15 July, 1886), p. 383. 

3 Carrara, "Opuscoli," Vol. IV, p. 291. 



§185] EQUIVALENTS FOR PUNISHMENT 271 

is better to protect liberated convicts than honest unemployed 
workingmen, to whom the convicts are preferred. Further, until 
the present they have made no distinction between born-crimi- 
nals and delinquents through occasion or passion, and they heap 
their benefits, be they ever so slight, on all liberated convicts 
alike, even the incorrigible, and often with either police or anti- 
preventive formalities. This explains why, in spite of so many 
platonic declarations and other proofs of a boundless philan- 
thropy, administered under the forms of direct charity (which 
is less useful than indirect), these societies of patronage do not 
prosper in any country. Even in England, where they are more 
flourishing than elsewhere, their action is really insignificant, 
in face of the evil whose extension they seek to prevent. 

§ 186. Penal Substitutes. Religious Order. 

History and criminal psychology bear witness that a corrupted 
religion foments criminality. We have examples of this in ancient 
Rome and the Rome of the Middle Ages (with its apostolic tariffs 
for the absolution of sins ') and in the religious sects of America 
and Russia of our own day. Religion, even when it works for 
the common good and not for the profit of a caste, can offer only 
a transitory obstacle to crime as did the exhortation of Savana- 
rola at Florence and of Father Matthew in Ireland. It cannot 
exercise any inhibitive function against the atavistic tendencies 
of born-criminals and habitual criminals, being limited to an 
ulterior sanction of the moral sense, which seems effective when 
the believer has a moral sense but which drops into nothingness 
when the moral sense is absent or atrophied. The prohibition of 
processions outside of churches besides insuring the respect due 
to the convictions of all, prevents disorders and riots. The sup- 
pression of monasteries and convents removes a focus of criminal 
assaults and begging. The diminution of the luxury of churches 
removes a strong incentive to the theft of precious objects. 
The abolition of pilgrimages to certain shrines prevents many 
crimes against good morals, the person, and property. The 
marriage of the clergy would avoid many infanticides, abortions, 
adulteries, and criminal assaults. 

1 Saint-Andre, "Les taxes de la penitencerie apostolique" (Paris, 1879); Ferri, 
"II sentimento religioso nei delinquenti," A. P., V. Q, and " L'Omicidio," Cap. VI. 
In a contrary and reactionary mood see Garofalo, "L'educazione popolare e la cri- 
minalita in Italia," a lecture delivered at Rome, 1896. 



272 DATA OF CRIMINAL STATISTICS [§§ 186, 187 

§ 186. Penal Substitutes. Family Order. 

Divorce prevents many bigamies, adulteries, and homicides. 
Aside from all of the moral and civil consideration which clearly 
militate in favor of divorce, it is readily seen that from the stand- 
point of crime, where the indissolubility of marriage does not 
permit the legal severance of a bond which has become unbear- 
able, the temptation to sever it by criminal means often becomes 
irresistible. 1 By giving preference to married men in certain 
civil and military functions, many abuses would be avoided, 
thanks to the salutary thought of the family. By requiring the 
civil marriage to precede the religious ceremony, many crimes 
of bigamy, infanticide, murder, and assault through revenge, 
would be avoided. The prohibition of marriage for certain per- 
sons would diminish the multitude of delinquents by avoiding 
as much as possible the fatal inheritance of crime. An intelli- 
gent regulation of prostitution, while protecting the rights of 
accidental prostitutes driven to the evil through the corruption 
of environment and by the abuse of the police power, would, at 
the same time, protect society against prostitutes with a con- 
genital tendency and serve society as an effective remedy against 
sexual delicts. 

§ 187. Penal Substitutes. Educational Order. 

It has been proven that a purely academic education, while 
rendering certain services and preventing certain coarse frauds, 
by spreading a knowledge of the laws and developing foresight 
up to a certain point (which is a contrary force to occasional delin- 
quency), is not altogether a direct and effective remedy against 
crime, and the schools, when they are badly supervised and es- 
pecially when they are not secularized, are themselves the homes 
of certain crimes, such as criminal assaults. For the very small 
part which education plays as a determinant of individual con- 
duct in comparison with the much greater influence exercised by 
conditions determined by the physical and social environment, 
it is necessary to add the moral training which results not from 

1 In my Italian editions (since in Italy, in this year of grace 1904, we have as 
yet no divorce), I considered it necessary to give some proof of this truth, which 
is axiomatic elsewhere, from comparative statistics. See the 4th Ital. Ed., 
pp. 438-444. 

[C/., also Lisle, "The Bases of Divorce," " American Journal of Criminal Law 
and Criminology," May, 1913, Thans.] 



§ 187] EQUIVALENTS FOR PUNISHMENT 273 

a sterile provision of empty and baseless maxims, but from lessons 
of experience and example. These lessons are received by every 
social class from its leaders, from the highest chiefs down to the 
humblest instructors. They are supplied by every institution, 
the government, the press, the professor's chair, and the preacher's 
pulpit, the theater, the public holidays. Thus, the suppression of 
certain cruel spectacles which make souls savage, the suppres- 
sion of gambling houses, and so on, are practical measures of 
social education. The experimental direction of pedagogy, con- 
formably to the general laws of physio-psychology and to the 
systematic physio-psychological study of the pupils by school- 
masters from the earliest years, by better adapting education to 
different human types, by making it less archeological and by 
putting it more in harmony with the necessities of life, would 
make men more capable of sustaining the fight for existence and 
by reducing the mass of declassed persons, would dry up one 
fountain of the excessive number of criminals. It is also urgent 
to improve the miserable condition of the teachers, who, obliged 
to fight against "malesuadam famem," cannot profitably devote 
themselves to popular education, of which they are the indis- 
pensable pioneers. The abolition of a great many holidays con- 
tributes to popular education; since holidays are always the 
occasion of numerous crimes and misdemeanors by bringing the 
people together for enjoyment. As Lombroso suggested, hy- 
gienic and gymnastic amusements could be substituted which 
would help to develop physical vigor at the same time with 
strength of character and resistance to adversity. Public baths 
also could be used, since attacks against the person more often 
occur in the warmest climates and seasons. And finally, free or 
almost free theaters, which would draw the people. A mass of 
crimes would be killed in the germ if their causes were removed, 
by preventing physical degeneracy through physical care of chil- 
dren, and by giving school children nourishment and preventing 
perversion through the education of neglected children with 
the aid of public schools, protective institutions, farming settle- 
ments, instruction given to the families of farmers, and the like, 
following the example set especially by England and America; 
instead of waiting until the evil has taken on gigantic propor- 
tions and having recourse to a useless repression. 1 

1 The protection of neglected children is a fundamental means for the replace- 
ment of penalties since it exerts the most far-reaching influence on thousands of 



274 DATA OF CEIMINAL STATISTICS [§ 188 

§ 188. Penal Substitutes. Neglected Children. 

Neglected childhood is the source and the seed of habitual 
criminality and recidivity. In its epidemic form, it, too, is a 
product of contemporary industrialism, which, with labor day 
and night of men and women, has destroyed all family life, forc- 
ing the children of the proletariat to grow up in the mud of the 
streets, and hence, to become accustomed to begging, petty 
thievery, and offenses of immorality, even when they are not 
compelled to it by their parents, from whom poverty has taken 
every human attribute. The absurdity of punishment inflicted 
on abandoned children is flagrantly obvious. On the one hand, 
as an "a priori" principle, the moral, and hence legal, irresponsi- 
bility of the child is conceded by grading the degree of free 
will and responsibility from period to period until majority. 
There is always the prejudice of the "ladder of crime" according 
to which the minor before becoming a great criminal ought to 
begin with small misdemeanors, following a sort of bureaucratic 
career in crime. The truth, on the contrary, is, that neglected 
children who begin with small misdemeanors seldom advance 
to the greater crimes. They remain the microbes of the criminal 
world, chronic but harmless in their criminal relapses. The great 
criminals commence their terrible exploits in their youth and 
sometimes in their infancy, because, as we have seen, precocity 
is one of the traits of the criminal by birth. 

On the other hand, when a half or a third of responsibility is 
attributed to the minor he is sent to prison, a school where he 
will perfect himself in the art of crime if brought in contact 
with criminals worse than himself and where his physical and 
moral degeneracy will increase if he remains isolated or with 
other minors. Here again it is evident that for this seminary 
of crime in place of repression should be substituted preventive 
means which should be suited to the different categories of this 
precocious army of crime. Distinction should be made between 

individuals who are specially predisposed or exposed to crime. It is equivalent, as 
a sanitary preventive, to the boiling of water in times of cholera or typhoid epi- 
demic and in the same way sterilizes the pathogenic germs. England owes the 
decrease of crime largely to the vigilant and extensive care given to neglected 
minors. 

In France there is the law of 24 July, 1889, for the protection of ill-treated and 
morally abandoned children (R.C., 1889, pp. 618 et. seq.) — and changes in it are 
contemplated. There is also the law of 19 April, 1898, for the repression of vio- 
lence and ill-treatment toward children. 



§ 188] EQUIVALENT FOR PUNISHMENT 275 

abandoned infants, foundlings, and orphans, the greater number 
of whom die in tender years while the others almost always 
become outcasts and criminals. There is, further, morally aban- 
doned infancy, which is often also ill-treated and tortured in- 
fancy. This last is moreover almost always the victim of the 
hysteria and hystero-epilepsy of the mother when not the victim 
of a cannibal-like greediness. In England, for example, there 
were nineteen thousand little children intentionally allowed by 
their parents to die that the latter might get the insurance 
money — this during a period of five years. The children of 
convicts, drunkards, vagabonds, and beggars constitute the sub- 
structure of morally abandoned infancy which carries the hered- 
itary virus of degeneracy in its veins. In addition to these 
there are the hordes of children abandoned through necessity 
by their parents who are condemned to a daily isolation in mines 
or shops. Less numerous, but more dangerous, are the last two 
categories; vicious infancy and delinquent infancy. 1 As for alco- 
holism, so all sorts of remedies have been tried for the different 
categories of neglected children, categories which are almost 
always intermingled. For children materially abandoned, a solu- 
tion of the problem of girl-mothers has been attempted through 
relief at home, through laws permitting the proof of paternity 
and fixing the responsibility for seduction. In fact, laws have 
even been suggested giving legal recognition to concubinage 
such as existed in Roman law. For the other categories there 
is hesitation between two systems: assembling the minors in a 
species of barracks (schools of correction, industrial schools, 
poorhouses, and public schools), and placing them in families, 
which is more difficult in practice, but much more hygienic. 
England is the classical country for the protection of aban- 
doned infancy ; this protection has been accomplished more 
through private initiative than through official action and on 
a large scale, which explains the decrease, or at least the 
arrested increase, of natural and hereditary delinquency in that 
country. The schools for the poor, industrial schools, reform 
schools, have an average of about 48,000 children a year (of whom 
23,000 are in the " ragged " schools). At the same time the chari- 
table institutions organized to prevent crime are occupied with 
one hundred and ninety thousand children almost every year. 

1 Ferriani, "Minorenni delinquenti" ; Morrison, "Juvenile Offenders" (Lon- 
don, 1896). 



276 DATA OF CRIMINAL STATISTICS [§ 188 

Besides this, as a matter of private initiative, Dr. Bernardo, 
among others, began in 1866 to concern himself with the little 
vagabonds of the London streets. After nourishing them and 
giving them some education, he sent them to the colonies, prin- 
cipally to Canada, where they became workmen. Perhaps the 
economic point of view is no stranger to this enterprise of Dr. 
Bernardo, but his work is not less admirable on that account since 
he cared for a yearly average of eight thousand minors and has 
already placed more than one hundred thousand, eighty-five per 
cent, of whom, according to his observations, were the sons of 
drunkards. In America, the Elmira Reformatory (founded and 
directed by Dr. Brockway for the application to the improve- 
ment of criminal and vicious minors of the principles of criminal 
anthropology in aid of a physiological, phychic, and disciplinary 
cure, in accord with the data of physio-psychology and criminal 
pathology) is another notable effort directed by the principle of 
segregation during an indeterminate time, — a principle after- 
wards adopted by the legislature of many States of the great 
American Union. In Teutonic countries, abandoned children 
are placed in honest peasant families. If the exploitation of the 
children is avoided, this system of family colonies certainly has 
advantages, especially when compared with the quartering of 
minors for a fixed period in the so-called houses of correction. 
In a few States of the American Union, and in Denmark, there 
is a combination of the systems of large establishments with that 
of placing minor in families. Nevertheless, for neglected child- 
hood, as for alcoholism, 1 the radical remedy will be found only 
in a social reorganization, where the life of the family, on the 
one hand, will be made possible and agreeable by a higher stand- 
ard in the life of the people, and in which, on the other hand, 
the school will effect a real social function, nourishing body and 
mind, and will no longer be a sterile, bureaucratic source of an 
entirely superficial and literal instruction. Furthermore, some 
of these sources of crime would be absorbed and the fatal school 
of crime would be fought by prohibiting immoral publications, 
now permitted through a false and trifling conception of liberty, 
which is satisfied with the imprisonment of the responsible agents 
when the evil is already done. The courts, also, should cease to 
furnish demoralizing spectacles open both to the better classes, 
who frequent them, as the decadent Romans attended the cir~ 
1 See ante. And for vagabondage also G, § 182, ante. 



§ 188] EQUIVALENTS FOR PUNISHMENT 277 

cus, and to minors and defectives, who come there to learn how- 
to commit crime with greater security. Hence the minis- 
terial circulars such as those of the honorable Vare, for example, 
which seek to combat these dangerous customs, are praiseworthy, 
at least for their good intentions, although they have met with 
no success. According to Fleury, 1 by suppressing reserved seats 
in the Belgian courts, a very notable decrease in the number of 
spectators of the higher class was brought about in the same, 
way that in England the technical character of the legal argu- 
ments, from which everything of a theatrical character is ex- 
cluded, has singularly diminished the number of idle rich and 
poor who in other countries flock there. 2 Especially favorable 
to popular education and adverse to crime, would be the sup- 
pression of the false glamour of crime and vice, which even rulers 
sometimes father, when crime and vice serve the interests of the 
dominant class, or are committed by individuals in whom that 
class finds unscrupulous defenders. 

1 Fleury, J. E. (November, 1874). 

2 Cruppi, "La cour d' assises" (Paris, 1898). 

The relations between crime and publicity (in the trials and in the press) has 
been discussed with animation in the International Congresses called for the pur- 
pose at Lausanne, Geneva, and Paris. Yet there is exaggeration (and this is the 
case with d'Aubry) of the determining and contagious efficacy of newspapers and 
books, since their influence is exercised only on individuals predisposed to it and who 
for this reason would have been impelled to crime by any other stimulant. In 
substance, the influence of publicity seems to be exercised rather on the manner 
of committing crime and by way of imitation, than on the decision to commit it, 
since to be a criminal it is not sufficient to desire it. Again, the liberty of the press 
(except when it amounts to a formal assault upon morals) is too essential to 
civil life for its abolition or restriction, with a view to avoiding some inconveniences 
which are always inevitable. Thus, as I shall say presently, we must examine which 
is the lesser of two evils; to suppress an institution or to surfer in preserving it 
some inconveniences that are compensated by greater advantages. Yet it is cer- 
tain that if the enormous advertisement given criminals and crimes by the papers 
is controlled by the force of public opinion (rather than by police restrictions, it will 
be a great advantage, all the greater because it will be the natural fruit of a more 
satisfactory civilization. For the influences of the press exercised only on per- 
sons predisposed by degeneracy or a psycho-pathological condition, see Ferri, 
"L' Omicidio," pp. 562, 563 and 414. 



CHAPTER VI 

PREVENTION AND REPRESSION 

Fundamental identity of prevention and repression. The fight against crime 
and its radical transformation. 

§ 189. Social Prevention More Effective Than Penal Laws. 

The examples just given and which could be made into a pre- 
ventive code opposing the penal code article by article show clearly 
the enormous importance of the social factors of crime, which 
depend upon the manner in which all of the parts of the social 
organism interact. They show, even better than the legislator, 
how a change in these factors effectively corrects the advance of 
criminahty, within the limits marked by the concurrence of other 
criminal factors, and, hence, marked by the law of criminal satura- 
tion. Quetelet was right when he said in this connection: "As 
the crimes annually committed seem to be an unavoidable result 
of our social organization and as the number cannot be decreased 
until the causes from which they spring are modified, it follows 
that it is the function of law-makers to recognize and destroy 
these causes as much as possible. It is their function to make 
up the budgets of crime as they make up the receipts and 
expenses of the treasury." l This may be, and in fact, is true, 
but it must not be forgotten that all of this should be done 
outside of the penal code. Strange as this may seem at 
first glance, it is the truth, as proven by history, statistics, and 
the direct observation of phenomena, that the penal laws are 
the least efficient in the prevention of crime, since the principal 
r61e falls to laws of an economic, political, and administrative 
order. Indeed, as Ellero says, "The role of penalties is purely 
negative and comes only in the last rank." 2 They do not re- 
member the occasions of crime which operate in the individual 
and in the environment. At the most they retard for a time (if 
they do even that) the torrent of weaker impulsions which are, 
however, always ready to overflow. Moreover, in the penal code 

1 QuUelet, "Physique sociale," Lib. IV, §8. 

2 Ellero, "Opuscoli criminali," p. 53. 

278 



§189] PREVENTION AND REPRESSION 279 

itself, because of this indirect dynamic effort of psychic forces, of 
which I have already spoken, the law-maker should change his 
present course and give greater influence to pecuniary fines, ca- 
pable of adjustment to the offense and the offender. 

Compared with imprisonment, they have the advantage of being 
less violent and direct, and, hence, their effect is more certain be- 
cause, as Machiavelli said, men give up their life more willingly 
than their money. It should also be considered that pecu- 
niary penalties are capable of an easy and economic applica- 
tion; that they can be greatly raised and thus reimburse the 
State and the victims of the crimes; finally, that they are a 
real antidote against the madness of sudden wealth. Yet 
the legislator, consulting the data of criminal statistics, should 
oppose these penalties to the misdeeds that are prefer- 
ably committed by the well-to-do and hence, solvent classes, 
without renouncing detention which is appropriate in the most 
serious cases: such as hired assassinations, and, in general, the 
serious attempts against the person and against morals — bank- 
ruptcy, forgery of commercial and official documents, extortions 
and bribery, peculation, abuse of authority, theft of public docu- 
ments, and duels. Power should be given to the judge to remit 
fines in cases of poverty; for the substitution of imprisonment for 
fines is an iniquitous survival of the barbarous laws which in 
primitive times permitted the creditors to divide the body of the 
debtor among themselves, and later established the debtor's 
prison, which civilization has condemned and abandoned. 1 In 
a word, the legislator, conforming to the lessons of scientific ex- 
perience, should realize that social reforms have much more 
power to prevent the overflow of crime than penal codes. His 
task is to maintain the health of the social body. He should, 
therefore, imitate the physician who preserves the health of 
individuals; and as little as possible and only in extreme cases, 
within the limits of strict necessity, have recourse to the violent 
methods of surgery. He should have but very limited confidence 
in the problematical value of remedies and should rely upon the 
safe and continuous services of hygiene. In social defense against 
crime and in the moral uplift of the people, the slightest progress 

1 The new Italian Penal Code inflicts pecuniary penalties more often, especially 
for contraventions. But as it keeps in mind specially the crimes usually inspired 
by cupidity rather than those which are more frequently committed by the well- 
to-do, it has in this particular, also, stopped short of the proprieties and necessities 
of social life. 



280 DATA OF CRIMINAL STATISTICS [§190 

in the reforms of social prevention is worth, a hundred times and 
more, the publication of a whole penal code. Indeed, legisla- 
tors now use what might be called the method of blood-letting. 
Like physicians of other days, who, little versed in experimental 
diagnosis and prophylaxis of individual diseases, treated them all 
more or less by blood-letting in order to drive out of the body the 
"evil humors," so our legislators of today, with all the phenomena 
of social pathology before them, have recourse to blood-letting, 
imprisonment applied in stronger or weaker doses. First of all, 
they fail to learn that in reality this so-called remedy never cures 
either society or individuals. Then, too, they do not see that, 
the greater part of the time, they neutralize whatever action a 
law could have, by always innoculating the social body with new 
"evil humors," by the incoherent mass of other laws. When a 
new law is proposed, for example, on the customs duties, divorce, 
railways, the treatment of employees, taxation, industrial free- 
dom of association, or any civil and commercial reform, very few 
people — nobody, so to speak — think of the disturbance that 
these innovations may cause in the criminality of the people, be- 
cause they believe that the measures on which criminality depends 
have been taken, and that changes in the penal code are the only 
necessary remedies. We should not foolishly boast of the sup- 
pression of evil. Let us not forget that if law is inseparable from 
society, a law necessarily involves crimes in its violation. 1 Ex- 
istence imposed a struggle, and, as I have said elsewhere, this 
struggle is kept up either by honest or economic activity or by dis- 
honest and criminal activity. 

§ 190. Inevitability of Social Friction. Crime Unavoidable. 

Again, in the social organism, as in every other organism, 
there are inevitable frictions. It is absurd to confuse order with 
the apathy or stagnant inertia of an enervated and servile people 
and to make a trembling appeal to the police and the courts 
whenever a leaf rustles. Social order cannot eliminate shock and 
friction in all the parts of the collective organism. All that can 
be done is to reduce to a minimum the more or less criminal shocks 
and frictions. And we already know that penalties are far from 
being the most effective and most appropriate instruments in 

' It is in this sense that Bentham said: "To create rights and obligations is 
equivalent to creating crimes," " Vue generale d'un corps complet de legislation," 
Chap. III. 



§ 191] PREVENTION AND REPRESSION 281 

attaining this result. These general remarks which I have just 
presented on the theory of equivalents for penalties in relation 
to the law of criminal saturation (which were already found 
in the preceding editions) are enough to meet the two principal 
objections which have been addressed to me by a few of those 
who at bottom have really accepted my theory. 

§ 191. Penal Substitutes. A General Argument. 
They say, on the one hand, that some of the equivalents for 
penalties proposed by me have already been applied and have not 
prevented criminality. On the other hand, they say that it would 
be absurd to abolish certain institutions solely because the trans- 
gression would also be abolished. I answer, first of all, that the 
equivalents for penalties are not intended to render every mis- 
deed impossible, whatever its nature, which would be absurd, but 
rather to di m inish the causes of misdeeds and hence to suppress 
the misdeeds themselves more or less completely. There are 
still acts of piracy committed; but it is none the less true that 
steam navigation (taking the place of penalties in this par- 
ticular) has been a hundred times more efficacious than all the 
laws. There are still murders committed in the trains, but the 
substitution of tramways and railroads for the stage coaches of 
other days has none the less been a powerful equivalent for pen- 
alties and has enormously reduced the number of armed robberies, 
with or without homicide. In like manner divorce does not 
absolutely prevent one spouse from killing the other, but it makes 
this crime rarer. Finally, the measures taken on behalf of neg- 
lected children certainly do not cause the prisons to be closed 
for lack of convicts; but they do exhaust in a great degree these 
fountains of crime that our codes permit to spread. And the 
same is true of other penal substitutes. I have already said 
(apropos of the institutions and prohibitions in force) that whether 
their suppression would cause a greater evil than that which 
comes from their transgression should surely be examined. Later 
I revolted especially against the widespread illusion by which 
people are persuaded that to remedy a social disorder nothing can 
be done except to multiply prohibitions and punishments, being 
blind to the effects which always reappear, instead of seeking and 
suppressing the causes when possible, or at least in weakening them 
by indirect measures and making them as little offensive as 
possible. I made a criticism of the equivalents for penalties that 



282 DATA OF CRIMINAL STATISTICS [§192 

had not been made by others, to the effect that its application is 
very difficult. It is enough to think even of the prodigious quan- 
tity of habits, traditions, and contrary interests, which must 
be overcome in order to apply it all at once. The equivalents for 
penalties indicated for the different orders of social activity show 
this: A great number of them, such as measures against alcohol- 
ism, in favor of neglected infancy, or for making the administra- 
tion of justice quicker and easier, imply not a single reform but 
entire systems of numerous and coordinate reforms. 

§ 192. The Importance of the Theory of Penal Substitutes. 

But (and I do not tire of repeating it) the importance of equiva- 
lents for penalties is not in the practical value of this or that 
isolated proposition. The object, the soul of the theory is to 
eliminate or at least weaken the mental habit of thinking of 
penal laws as the only means of avoiding the phenomena of social 
pathology. Of course, even in private life, it is tiresome and 
difficult to follow continually the rules of hygiene. It is easier, 
although more dangerous, to forget them and wait until the mal- 
ady appears and then have resource to the more or less illusory 
remedies of medicine. But this public and private improvidence 
itself is exactly what needs correction. As hygiene was impos- 
sible, both in theory and practice, before the observations and 
experiments of physio-pathology on the causes of disease, espe- 
cially epidemic and infectious diseases, and before the discoveries 
of bacteriology; so, in like manner, social hygiene against crime 
was only possible as a theory and can only be possible in prac- 
tice through the discoveries and dissemination of the data of 
criminal anthropology and criminal sociology and a knowledge of 
the natural factors of crime, especially of the factors of more or 
less epidemic occasional criminality. Let me further add that 
legislators and statesman must really take the present physical 
and psychic conditions of the people into account in order to gov- 
ern and solve the greater or lesser difficulties under more or less 
favorable circumstances of time and place. Science, on the con- 
trary, need only designate the object, however distant and difficult 
of attainment it may be. The first condition for enacting legis- 
lative and social reforms is that they shall first be impressed upon 
the public conscience. This can be effected only when science, 
in spite of the transitory difficulties of the movement, resolutely 
and without any of the hybrid, sterile, and impotent compromises 



§§ 193, 194] PREVENTION AND REPRESSION 283 

of an eclectic opportunism, points out the route to follow and 
the ideal to be realized. 

§ 193. Prevention of Crime a Duty for the Criminologist. 

To all that I have said so far, two principal objections can be 
made. The first is, that this outline of a system of equivalents for 
penalties is nothing more than the ordinary prevention of mis- 
deeds. The second is, that it does not concern the criminalist, 
because prevention is less a science than an art, the art of good 
government, quite distinct from the true science of crimes and 
penalties. It will be more convenient to treat of the second 
assertion in the next chapter l and in the final conclusion; hence, 
I shall say a few words about the first. My reply is, that since 
Montesquieu and Beccaria, the utility of the prevention of mis- 
deeds has been known. That utility is certain yet it is proclaimed 
only in platonic and isolated declarations and not followed up 
by a systematic development, which, with the support of criminal 
sociology, could lead to immediate applications in practice. We, 
however, beginning with the observation of facts, have arrived at 
a very different conclusion, more prolific of results: namely, that 
given the quasi-impotence of penalties against crimes, prevention, 
instead of being an accessory, should be the principal guarantee 
of social order. What is most important to remark is the differ- 
ence between simple prevention of crimes, in the ordinary sense, 
and the equivalents for penalties, and between police prevention 
and social prevention. The first is limited to the prevention of 
the misdeed when its germ has already developed and its execution 
is threatened. It generally employs only means of direct constraint 
which, of a repressive nature themselves, have already been em- 
ployed without success and often only provoke new crimes. On 
the contrary, social prevention goes back to the remote origin 
of crime in order to suppress the first germs. It seeks out the 
different anthropological, physical, and social factors of criminal 
phenomena and fights them entirely by indirect means, based 
on the free play of physiological and sociological la 

§ 194. No Science of Criminal Prevention. 
Science (and legislation as well) has until now given too 
exclusive a preference to repression, or at least to police pre- 

1 G. § 196 el seq., post. 



284 DATA OF CRIMINAL STATISTICS [§194 

vention in the works on the science of good government, and 
especially in French works. In legislation, says Bentham, the 
part which has been given preference over all others is the pen- 
alty, because it is only too natural and convenient to say that 
in order to avoid certain acts they must be punished, and be- 
cause prevention is the most difficult part, the part which requires 
the longest observations and the deepest reflection. Ellero adds 
that there are magistral works, folios, which treat not of punish- 
ment but of torture, and that none are to be found in which the 
author concerns himself in the search for a possible substitute for 
punishment. Montesquieu, Filangieri, Beccaria (in a few of his 
pages), and more recently Tissot, 1 speak of the influence exerted 
by the form of government, religion, climate, and soil on the 
penal system, but not of the manner of preventing crimes. The 
handful of writers who have treated this subject with larger and 
more systematic views (to mention only the most important, 
disregarding those who have more or less followed the spirit of the 
positive school in their writings on criminal sociology) are Ben- 
tham, 2 Romagnosi, 3 Barbacovi, 4 Carmignani, 5 Ellero, 6 and 
Lombroso. 7 Inspired by a more positive spirit and not doc- 
trinaires with criminal theories, they study rather preventive 
reforms by the experimental method. But even these learned men 
are either limited to general and synthetic considerations, like 
Romagnosi and Carmignani; or else, descending into the domain 
of facts without, however, losing sight of the preventive defense 
of society, they have largely neglected the physio-psychological 
laws relative to the natural factors of crime, which alone could 
furnish efficacious means for the regulation of human activity. 
They have always definitely retained punishment itself as the 
principal means of prevention. Their teachings, having no more 
solid base than abstract reasonings, have on this account fallen 
into discredit since they had no foundation to bear the edifice. 
The authority of facts (an authority which always succeeds in 
imposing itself) was lacking in them. Without the aid of crimi- 

1 Tissot, "Le droit penal," 2d ed. (Paris, 1880), II, pp. 940 et. seq. 

2 Bentham, " Treatise on Legislation, Principles of a Penal Code." 

3 Romagnosi, "Genesi del diritto penale," P. V. 

4 Barbacovi, "De criminibus avertendis" (1815), and Discourse XIII on the 
"Scienza della legislazione" (Milan, 1824). 

6 Carmignani, "Teoria delle leggi di sicurezza sociale," Lib. Ill, Part 8. 

6 Ellero, "Della prevenzione dei crimini," in the "Opuscoli criminali." 

7 Lombroso, " L'incremento del delitto in Italia." 



§195] PREVENTION AND REPRESSION 285 

nal sociology they could not prove to a certainty that penalties 
have not the efficacy commonly attributed to them and that it is 
necessary to resort to surer means. "Now if these means have 
hitherto been neglected, it is because there is nothing more cal- 
culated to discredit and to make useless the means which are 
efficacious in regulating human conduct, than the employment 
of those means which are not." * 

§ 196. Crime is Pathological. Need of Prevention. 
We have just indicated the principal theoretical and practical 
relations of criminal statistics with criminal sociology, and they 
may be summed up in the following conclusion. In the same 
way that misdeeds are natural phenomena resulting from different 
factors, so also there is a law of criminal saturation, in virtue of 
which the physical and social environment, combined with heredi- 
tary and acquired tendencies and occasional impulsions, deter- 
mines in a necessary way the quota of misdeeds. The things 
which influence the criminality of a people in the natural order 
are their individual and telluric conditions. In the social order, 
more than the penal code and with much greater intensity, they 
are the economic, political, administrative, and civil conditions 
and laws. The problem of the fight against crime presents two 
different aspects, both far removed from the simple barbarism 
of penal repression. For crime, in its atavistic and anti-human 
forms (forms contrary to the imminent and fundamental con- 
ditions of human existence), and in its evolutionary or politically 
anti-social manifestations (manifestations contrary to the transi- 
tory order of a given society), is not the fiat of free will and human 
perversity, but is rather an effect and symptom of individual 
pathology in its atavistic, and social pathology in its evolutionary 
forms. The function by which society is preserved from crime 
should undergo a complete change of orientation. It should cease 
to be a belated and violent resistance to effects and should diag- 
nose and eliminate the natural causes. This fimction must be 
advanced as a preventive defense of society against natural and 
statutory crime. Now these equivalents for penalties represent 
not so much partial and passing reforms as mental discipline to 

1 Stuart Mill, "On Liberty." 

Sometimes even legislators have established equivalents for penalty but with 
a rebound. This is what was done in Italy (and I proved it in my Italian editions) 
in the Codes of penal procedure and penal law and in other statutes. See 4th ed., 
pp. 462 et seq. 



286 DATA OF CRIMINAL STATISTICS [§195 

be followed in the solution of the problem, of which the final con- 
clusion of this work will afford another aspect in the symbiosis 
or utilization of the tendencies of delinquents, according to the idea 
advanced by Lombroso. Since, however, the absolute disappear- 
ance of every crime-breeding condition is humanly impossible 
(even in a social organization capable of eliminating the epidemic 
and most common forms of crime) there will always be a need of 
a system of defense against the sporadic and acute effects of 
criminal frenzy. This agrees at every point with the universal 
law of evolution, according to which, in the continual variation of 
animal and social organisms, the earlier forms are never com- 
pletely eliminated but persist as the basis of ulterior forms. 1 
Consequently, the evolution of the social function of defense 
against misdeeds will be produced in the direction of a transition 
from the forms of physical and direct coercion to forms of a psy- 
chical and intellectual re-training of human activity, obtained by 
a change in the conditions of life of both the individual and so- 
ciety. But this is not saying that the primitive forms are to 
disappear completely. 

A critical examination of the difficulties encountered by the 
criminalist of our day, far from leading to the negation of 
penal function and penal science, confirms their rational and 
political necessity, although it limits considerably their social 
importance and profoundly changes their spirit and object, 
in accordance with the data of anthropology and criminal 
statistics. This data, as we shall see in the following chapters, 
frees from all penalties every form of human activity, which does 
not constitute or is not accompanied by a manifestation of ata- 
vistic criminality. Against this criminality, the purely and stu- 
pidly repressive function will be transformed into a clinic, by 
which society will be preserved from the disease of crime as from 
any other physical or mental disease. In the meantime, to con- 
clude this examination of the data of criminal statistics, which have 
thrown light on the social factors in the genesis of crime, I shall 
sum up my thought in the modification of an old comparison which 
has been singularly abused. Misdeeds in their entirety are com- 
pared to an impetuous torrent which should be met by the dykes 
of punishment to prevent society from being inundated and sub- 
merged. I do not deny that penalties are the dykes of crime; but 

1 Ardigb, "Le formazione naturale," in the "Opere filosofiche" (Padua, 1884), 
Vol. II. 



§195] PREVENTION AND REPRESSION 287 

I assert that these dykes are too weak to be useful. In the same 
way that sad and incessant experience teaches that material 
dykes are an insufficient protection from overflows of rivers (par- 
ticularly at the moment when the latter are most formidable), 
so also statistics prove that penalties offer but insignificant resist- 
ance to the assaults of criminality, once the social environment 
has developed its fatal germs. Penalties, like the dykes at low 
water, are but useless scarecrows against those who are neither 
disposed nor forced to do evil. But as (according to the natural 
laws of hydrodynamics) the surest means of contending with 
floods is the reforesting of the mountains near the headwaters 
and straightening and deepening the rivers and improving their 
mouths; so, also, in protecting society from crime, it will be wiser 
to use the equivalents for penalties, also based upon the natural 
laws of psychology and sociology, and which are, therefore, not 
only more humane but much more effective than all the obsolete 
weapons of the arsenals of the ancient penality. 



PART III 
POSITIVE THEORY OF PENAL RESPONSIBILITY 

CHAPTER I 

THE NEGATION OF THE FREE WILL 

Postulate of the Classical School denied by positivist physio-psychology; and in 
any event disputable in theory and dangerous in practice. The negation 
of free will. Eclectic compromise on moral liberty. 

§ 196. Problem of Penal Responsibility. 
The most radical and hence the most contested conclusion 
(even by those who are strangers to penal studies) brought home 
by the new data of anthropology and statistics on crime and 
those who commit it, has been, and is, the new way of stat- 
ing and solving the fundamental problem of responsibility. 
The technical results of biology and criminal sociology, the pro- 
posals of practical reforms in systems of procedure and repres- 
sion, may be and are admitted, wholly or in part, even by those 
who do not follow the method and inductions of the positive 
school. Still, the revolt of the enemies of every novelty against 
the positive school appears and persists both in the irreconcilable 
attitude of classical purism in opposition to reform and in the 
thousand accommodations of academic eclecticism, especially 
when there is question of the criteria and bases of penal responsi- 
bility. 1 This is because the problem necessarily goes outside 
of the technical limits of criminology to test and shatter the 
mass of mental and sentimental habits which constitute the 
social dogma of human responsibility, even outside of the penal 
domain, and to modify the ideas and norms of merit and de- 
merit, of reward and punishment, of vice and virtue, in every 
manifestation of civil life, in the moral as well as in the eco- 
nomic field, in the family as in the school and in social life. 

1 A recent notable example of this is found in Saleilles " Individualization of Pun- 
ishment" (Modern Criminal Science Series, Volume IV), where the author ac- 
cepts the practical propositions of the positive criminal school, but has not courage 
enough to abandon the metaphysical principles on human responsibility. 

288 



§§ 197, 198] THE NEGATION OF THE FREE WILL 289 

And this confirms the fact mentioned in the introduction, 
namely, that this new position of the science of crime and punish- 
ment depends intimately on the general renovation observed since 
1850 in philosophical thought as the result of the experimental 
method. 

§ 197. Basis of the Eight of Punishment. 

The habitual reasoning by which public sentiment, traditional 
philosophy, and classical criminal science justify the right to 
punish man for his misdeeds is reducible to this: man possesses 
free choice or moral liberty; he can will either good or evil, — and 
hence, if he chooses evil he is responsible for his choice and should 
be punished for it; and accordingly, as he is or is not free, or rather 
as he is more or less free in the choice he makes of evil, he is more 
or less responsible and punishable. The positivist criminal school 
does not accept this unanimous reasoning of the jurists, for two 
main reasons. The first is, that positivistic physio-psychology has 
completely destroyed the belief in free choice or moral liberty, in 
which, it demonstrates, we should recognize a pure illusion of 
subjective psychological observation. The second is, that even 
accepting this criterion of individual responsibility, insurmount- 
able theoretical and practical difficulties are met in applying it to 
each particular case, and the field is left open to a mass of ex- 
ceptions, as the result of false deductions drawn from the new 
and incontrovertible data furnished by the study of criminal man. 

§ 198. Moral Liberty. 

To affirm free choice or normal liberty (and our opponents, 
to promote confusion with this elastic and indefinite word "lib- 
erty," never say free choice, although the two terms are perfectly 
synonymous) is to assert, that, in the face of the ceaseless and mul- 
tiform pressure of the exterior environment and of the conflict 
of divers interior motives, the will of the individual has the final 
decision between two opposite possibilities. Now, it is not dis- 
puted that consciousness finds this the easiest and most spontane- 
ous answer, although there is every day an increase in the 
number of those who are, on the contrary, conscious of the non- 
existence of the free will. 1 But for those who believe in it, there is 
nothing to prove that this moral conviction corresponds to the 

1 Such were the declarations of Moleschott as enthusiastically received at the 
First International Congress of Criminal Anthropology, A. C. A. C. (Rome, 1886), 
p. 320. 



290 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 199 

positive reality or is an adequate representation of it. It is shown, 
on the contrary, in the first place, that this feeling of freedom to 
will one thing rather than another is a pure illusion arising from 
the fact that we have no consciousness of the immediate ante- 
cedents, whether physiological or psychic, of the deliberation which 
precedes the will. To the negative demonstration, disclosing the 
origin of this natural and, hence, universal and obstinate illu- 
sion, scientific physio-psychology, uniting external observation 
through proofs and counter-proofs with the mere internal or 
suggestive observation, adds a positive demonstration by showing 
the natural process in accordance with which every voluntary act 
of man is unrolled. Let us consider (as we must) the voluntary 
activity of man as the highest and most complex form of animal 
activity. We will fully recognize that from the most humble 
extremity, namely, from a mere reaction of irritability in the 
most elementary animal forms, the protozoa, for example, up to 
the highest extremity, namely, the deliberate act of a human 
being, there is a continuous series of shades and degrees which 
do not admit of a special privilege in humanity by the interven- 
tion of moral liberty, which would be a miraculous exception in 
the entire order of universal activity. 1 Thus, from the weakest 
and least perceptible glimmer of intelligence in the simplest animal, 
we reach, by a continuous series of shades and degrees, the high- 
est manifestations of human genius. 

§ 199. Process of Action. 

The physio-pathological process of every individual action is 
reducible to the following scheme: (a) a physical phase external 
to the nervous center, which may have its point of departure 
outside of the individual in the external world or in his body; 
for example, a vibration of the air or ether which chances to strike 
the periphery of the body, or perhaps a movement produced in the 
body itself, whether in the stomach, liver, or elsewhere; (6) a 
double physiological phase, first a centripetal vibration in the 

1 Verworn, "Psycho-physiologischen Protisten-Studien" (Jena, 1889); Binet, 
"La viepsychique des micro-organismes, " in "Le fetichisme dansl'amour" (Paris, 
1891); Schneider, "Der thierische Wille" (Leipsic, 1880); "Der menschliche 
Wille" (Berlin, 1882); Sirkowski, " Developpement de la volonte chez 1'enfant," 
E. P. (May, 1885); Marion, "Les mouvements de 1'enfant; premier progres de la 
volonte," in the "Revue Scientifique" (June, 1890); Baldwin, "Le developpe- 
ment mental chez 1'enfant et dans la race," pp. 339 et seq. And to the same effect, 
the works on infant psychology by Perez, Preyer, etc. 



§ 199] THE NEGATION OF THE FREE WILL 291 

substance of the nerve whose peripheral extremity is struck by the 
physical movement and which transmits to the nerve center 
the vibration determined by this movement; and secondly, a cen- 
trifugal movement which follows the same nerve in a contrary di- 
rection and transmits this same vibration from the center to the 
periphery; (c) a new physical phase, which is the muscular 
movement, mechanical, the external action, the effect of this 
centrifugal nervous current. For example, a man speaks to me: 
there results an exterior movement of the air, a centripetal nerv- 
ous current from the ear to the brain, a centrifugal nervous cur- 
rent from the brain to the arm and a movement of the arm itself. 1 
This fundamental evolutive process may have two modalities: 
either at the instant the centripetal nervous current reaches the 
brain, we are aware of it and it then becomes conscious, and 
passes, as Sergi says, into the psychic phase 2 and is seen in 

1 In connection with this psycho-physiological process, there is the well-known 
theory of "idea-forces" developed by FouillSe in his "L'evolutionnisme des idees 
forces" (Paris, 1890). But either you understand by this what Ardigo, in 1870, in 
his "Psicologia come scienza positiva" called "the psycho-physiological impulsive 
force of ideas," when it is reduced to a transformation of force, by which the physi- 
cal movement, determining the sensation, is converted into a muscular movement 
determined by the nervous system, or else you add a metaphysical principle to this 
positive and undeniable datum, as is the theory of Fouillee, and then the theory 
turns into a work of the imagination and is only one of the ordinary eclectic move- 
ments between past spiritualism and present positive psychology. See Tarozzi, 
"L'evoluzionismomonisticoe leideeforze secondo Fouillee," in the "Rivista pbilo- 
sofica scientifica" (December, 1890). For, treating of the problem of free will and 
opening the discussion between the partisans of liberty and the determinists, Fouil- 
lee, in "La liberte et le determinisme," 2d edition (Paris, 1884), Lib. Ill, like 
Sicilian! in "Le questioni contemporanee e la liberta morale nell' ordine giuridico" 
(Bologne, 1889), a republication of "Socialismo e Darwinismo" (Bologne, 1879), and 
like all eclectics generally, concluded that beyond a doubt freedom does not exist as 
an arbitrary power of will, but that it does exist as "idea-force" tending to its own 
realization and, consequently, "man is not free but becomes free." This is a play 
upon words. Magical thoughts, with which those (and there are many of them) 
can content themselves who recoil into philosophies before the precise and radical 
solutions, which have no solid or fecund content. It is incontestable that the idea 
of moral or volitive liberty, like all other ideas, such as that of their own intelligence, 
energy, or fortune, exercises a very efficacious influence on the conduct of men, 
being one of the motives which by auto-suggestion, determines their course. And, 
on the other hand, the idea of non-volitive liberty or psycho-physiological deter- 
minism exerts an influence which, no matter what is said, is neither harmful nor 
enervating. But this thought born of psychological illusion, explained hereafter, 
has really nothing in common with the independence of the human will as far as 
its determining causes are concerned. And as in them alone free will and moral 
liberty are found, this idea is inadmissible. 

2 Sergi, "Sulla natura dei fenomeni psichici," in "Archivio italiano di antro- 
pologia" (Florence), X, I; Masilles, "Les phenomenes moteurs et la volonte" 
H. S. 29 (March, 1890). 



292 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 200 

sensation, in the feelings, in ideas, in voluntary effort; or else it 
does not reach this psychic manifestation, but it remains in the 
domain of unconsciousness as a simple reflex act. In the latter 
case, which is the more simple, the evolutive process is, as I have 
said, composed of three phases, of which one is double. On the 
contrary, in the case of conscious manifestation, there is a further 
physical phase which divides the double physiological base and 
there are then produced these five stages of complex phenomena: 
external physical movement at the beginning — centripetal phys- 
iological current, psychic manifestation, centrifugal physiologi- 
cal current, finally, external physical movement. If this process 
does not reach the psychic phase it remains in the condition of a 
simple reflex act, unconscious and involuntary, where the idea 
of the free will does not enter. If, on the contrary, it attains 
to psychic manifestation and becomes a conscious and voluntary 
act, there is then produced, through the illusion indicated below, 
the feeling of volitional liberty during the psychic phase, par- 
ticularly in special cases where the deliberation is not instantane- 
ous, hence, more distinctly noticed. 

§ 200. Moral Liberty an Impossibility. 

The supposition of liberty violates two universal laws which 
make it absolutely inacceptable. There can be observed in this 
evolutive cycle of an initial physical movement transforming 
into a physiological movement and then into a final physical 
movement a further instance of the universal law of the trans- 
formation of forces, which, thanks principally to Mayer and 
to Helmholtz, is certainly the greatest discovery of the age in 
natural philosophy. 1 Now, since this law, the correlative of 
Lavoisier's law on the conservation of energy, cannot be con- 
ceded unless we admit that, in the whole series of phenomena 
nothing is created, nothing is lost and that there is always the 
same quantity of force, which takes different aspects, it follows 
that the hypothesis of free will is inadmissible, that is, of a voli- 
tional faculty which, intermediate between these transformations, 
would be able to suppress or add something, either by prevent- 
ing the ulterior manifestations of individual activity, or by alter- 
ing the energy or direction of this activity, effecting a real creation 
or destruction of forces. 2 Another universal law which is the 

1 Spencer, "First Principles"; Balfour Stewart, "Conservation of Energy.'' 

2 Attempts have been made by Saint- Venant, Boussinesq, Delboef, and more 



§ 200] THE NEGATION OF THE FREE WILL 293 

very base of our thought, and which has been scientifically proven, 
is completely opposed to the hypothesis of a will free to choose 
between two contrary solutions, namely, the law of natural causal- 
ity. In virtue of this law, every effect being the necessary pro- 
portional and inevitable consequence of the entirety of causes 
which produce it, of its mediate and immediate precedents, a 
faculty is inconceivable which could realize an effect different 
from that which results naturally from its proper causes. These 
general demonstrations of the impossibility and inconceivability 
of free will or moral and volitive liberty are aided by the most 
positive confirmations of fact based on experience. Physiology 
and psycho-pathology 1 concur in demonstrating that the 
human will is completely subject to natural influences, not only 
of the moral or psychological order but also of the purely physical 
order and is far removed from dominating them in a more or 
less absolute way. Statistics in turn show that individual wills 
taken collectively obey the exterior influences of the physical 
and social environment. 2 Every man has his own physical and 
psychic personality (temperament and character) which is es- 
sentially determined by physio-psychic heredity, and is developed 
and modified according to environment. But especially in rela- 
tion to his affective life, this personality persists as a more or 
less conscious but constant and inflexible determinant of indi- 
vidual conduct; that is to say, that man acts as he feels and not 
as he thinks. In the same way there are, by reason of special and 
original constitution of the nerve centers, some men of great 
intelligence and others of feeble intellectual power. In like man- 
ner, there are men endowed with great will power and great 
energy of active resistance, and others whose will and activity 
are feeble, intermittent, or unstable. Furthermore, the same 

recently by Couilhac, "La liberie et la conservation de l'energie" (Paris, 1898), 
and by others to reconcile free will with the conservation of energy, but Fonregrive 
himself, in "Libre arbitre" (Paris, 1887), p. 298, as well as Groder and Fouillee, 
recognize that it is impossible, provided that one is not ready to accept its logical 
consequence, " the contingency of the laws of nature." This was, however, accepted 
by Bovtroux in "De la contingence des lois de la nature" (Paris, 1874). See also 
FouUlSe, "La reaction contre la science; la philosophie de la contingence," R. P. 
(January, 1894); Douriac, "Pour la philosophie de la contingence" (a reply to 
the above), in the "Annee philosophique pour 1895" (Paris, 1896), p. 77; Pillon, 
"Les lois de la nature," R. P. (January, 1897). 

1 Maudsley, "The Physiology of the Mind"; Eerzen, "La physiologie de la 
volonte" (Paris, 1874); Ribot, "Les maladies de la volonte" (Paris, 1888). 

2 Buckle, "History of Civilization in England"; Wagner, "Die GesetzmUssig- 
keit in den scheinbar wilktirlichen menschlichen Handlungen." 



294 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 200 

individual not only notes the powers of his will developing at 
the same time with those of his body in the same way that this 
occurs for every other organic function; but at different moments, 
on account of external or internal influences, he has invincible 
weaknesses of will or recrudescences of energy and volitional 
celerity. A high temperature, a hot wind, nervous exhaustion 
following excessive labor, a period of slow digestion, and many 
other accidental causes have a power, which every one has experi- 
enced, over the energy of our will, and even over our feelings. 
Every one knows how health, or better still an excellent digestion 
makes a man benevolent and generous. Poverty or chronic hun- 
ger is really a great cause of physical and moral degeneracy. 
The will of a man for good or evil may be modified by a special 
diet. Coffee and tea excite the production of ideas; alcohol in 
small quantities excites the will, yet if taken to excess it leads to 
an organic degeneration which follows the weakening of the psy- 
chic functions of intelligence and will. The same may be said 
of the characteristic action of certain poisons, narcotics, and 
the like. Finally, let us add the recent eloquent data of hypnotism 
permitting the experimental production of a species of psycho- 
logical vivisection to such an extent that it is not possible longer 
to deny that the human will depends absolutely and continually 
on the organic and, hence, psychic conditions of the individual. 1 
If this dependence of will in relation to special congenital or ac- 
quired, permanent or transitory, states of the organism, be con- 
ceded (since it cannot be denied in the clear cases) by what right 
can we deny it under all other circumstances where it appears 
less clearly? Does it follow that a thing has less existence be- 
cause it is less evident? There are many other instances besides 
these in the physiological domain. After he had made a study of 
the diseases of memory and personality, Ribot collected and 
arranged many observations of fact to establish diseases of the 
will. He studied its impairment as the consequence of a lack or 
excess of impulsiveness, its anomalies and even its destruction 
depending, like every other mental disease, on the pathological 
conditions of the organism. 

1 Morselli, in "II magnetismo animale e gli statiipnotici " (Turin, 1886), p. 189, 
said, "Hypnotism has finished by destroying every prejudice against free will." 



§ 201] THE NEGATION OF THE FREE WILL 295 

§ 201. Indivisibility of the Human Mind. 

The traditional philosophy, with no other means than erro- 
neous introspective observation, has spread the idea that the human 
mind is divisible into several faculties, — memory, intelligence, 
and will, — each of which, as a real self -existent entity, has the 
task of producing at each instant through its essence each of our 
recollections, ideas, and volitional deliberations. Hence it is 
that we hear the "will " spoken of as intervening to decide between 
two series of contrary motives. If we look to positivistic psy- 
chology for a less fantastic and less naive notion of the mental 
faculties, we find that these so-called faculties are but syntheses, 
works of the mind corresponding to no real entity. As the color 
red is the subjective synthesis of all the different red tints which 
we have seen reunited in what they have in common without 
there being objectively a self -existent color red (since there 
exists only such or such an object of such or such a determined 
shade of red), so memory and intelligence are but the subjective 
abstract and general sum of all the particular thoughts which 
we have had either in our own existence or as an inheritance from 
our ancestors. Nor does a memory exist. There are only iso- 
lated acts of memory in the same way that an intelligence does 
not exist, there being only isolated thoughts, and so on. In like 
manner the will is but the abstract synthesis of all of the voli- 
tional acts which we have performed. Hence the will does not 
exist as an autonomous being which from time to time issues 
volitional commands. 1 Nor is this all. The volitional delibera- 
tion resulting from the above-mentioned physio-psychological 
process of every human act, is not the cause of the movement; 
it is but the consciousness of this very movement which is being 
executed, not by virtue of the volitional command, but merely 
by the process of reciprocal transformation of physical and physio- 
psychological forces. This is equivalent to Ribot's statement: 
the "I will" takes note of a situation, but does not create it. 2 
So true is this that the final muscular movement may be produced 
where an electric current, applied to the same efferent nerve, 
takes the place of the volitional command and centrifugal nerv- 
ous current. 

1 For the theories of will in modern psychology, see Kuelpe in his "Philosophi- 
sche Studien," V. 2, 1888-9, and Villa, "La psichologia contemporanea" (Turin, 
1899), pp. 418 et seq. 

2 Ribot, "Les maladies de la volonte," p. 175. 



296 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 202 

§ 202. No Free Will Because Will is not an Entity. 

If there is no self-existent will, but only isolated and successive 
volitions; and if every volition is simply the consciousness of the 
physio-psychological process about to be completed (and the 
difference between a voluntary and an involuntary act is merely 
the presence or absence of this consciousness), it is clear that we 
cannot conceive of moral liberty or free choice. Since free choice 
would be an inseparable quality of the human will, the moment 
the self-existent subject, or will, is suppressed, the quality attri- 
buted to it disappears. This positivistic and scientific manner 
of considering the human will serves also to refute the contra- 
diction of the disguised neo-spiritualism of which I spoke, 1 
and which Grote intruded into the Congress of physiological- 
psychology at Paris, but without finding any 2 sympathy. His 
partisans say that as a general thesis the function creates the 
organ and that in our special field "crime creates the criminal," 
while the inverse is not true. In truth, it is impossible to con- 
ceive of a will as an autonomous psychic force, foreign and an- 
terior to any organic element. The will is conceived only as 
the resultant and function of an organ upon which it doubtless 
reacts, since every effect becomes in turn a cause, but the order 
of succession cannot be inverted. There is no organ without 
an actual function. That is an idea of which we are unable to 
conceive. It may also be said that we are not even able to con- 
ceive of a crime without a criminal to commit it, while it is pos- 
sible, in the biologico-social, if not in the legal sense, that there 
should be a criminal (personal dispositions being restrained by 
favorable circumstances) who has never committed a crime. Cer- 
tainly the crime committed exercises a reaction on the criminal 
by stifling or destroying that repugnance to wrongdoing, the 
absence of which creates an habitual criminal. We know that 
by reason of a property of the nervous system an act once exe- 
cuted is more easily repeated; but to say that an effect may 
become the cause of ulterior effects is quite another thing than 
that the effect precedes and determines the cause. 

1 0. S., ante. 

s Grote, "La causalM et la conservation de l'energie dans le domaine de l'ac- 
tivitl physique," "Congres international de psychologie physique" (Paris, 1890), 
p. 106. 



§§ 203, 204] THE NEGATION OF THE FREE WILL 297 

§ 203. Statistics Prove That There is No Free Will. 

Passing from isolated individuals to the mass of individuals, 
statistics with equally convincing proofs confirm the dependence 
of the voluntary activity of man upon the conditions of physical 
and social environment. First of all, racial differences (which are 
to a people what temperament is to an individual), controlling 
both intelligence and will, are an initial manifestation of this 
dependence. Consequently, the data supplied by demographic 
and criminal statistics, so neglected by the defenders of the free 
choice, have shown that those human acts which were believed to 
be the most free morally, such as marriages, suicides, crimes, or 
emigrations, were, on the contrary, subject to the influences of 
environment and varied with these influences. Statistics have 
thus given the death blow to the idea of a moral liberty. 

§ 204. No Limited Freedom of Will. 

It is needless for me to advert here to the compromise, which 
many statisticians have adopted, according to which the regular- 
ity and necessity of human acts shown by statistics are true for 
the mass but not for individuals who always preserve a relative 
and limi ted freedom "like a bird in a cage." At bottom this 
eclectic explanation always implies the strange consequence that 
it is possible for the sum of many individuals "relatively free" 
to compose a mass "absolutely determined" in its activity. In 
my opinion, the observation which I have made is constantly 
decisive, namely, that if statistics alone do not suffice to prove 
the non-existence of free choice, they incontestably serve to 
confirm it. 1 Furthermore, this moral liberty, if once admitted, 
would make all psychological and social science impossible and 
absurd in exactly the same way that the supposition of free choice 
in the atoms of matter would destroy all physical and chemical 
science. Hence, the negation of free choice instead of being, as 
the spiritual schools assert, the source of all evils, is fertile in 
beneficent effects in moral and social life, since it teaches tolerance 
of ideas, inspires mutual indulgence and counsels, and in pedagogy 
as well as in the art of government a moral hygiene which antici- 
pates evil sentiments instead of rigorously repressing them after 
they have developed. This negation is the necessary condition of 

1 Ferri, "Teoria dell' imputabilita e negazione del libero arbitrio" (Florence, 
1878), and in his "Saggi." 



298 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 205 

all sociological theory and practice. Law has no other possible 
foundation than the determination of the human will by social 
motives, the only motives of which such laws can make any dis- 
position. Indeed, the artificial action of juridical laws can be 
efficacious only when not too radically opposed to the more power- 
ful plastic and dynamic elements of the motives which act nat- 
urally on every man. Since "La teoria dell' imputabilita e la 
negazione del libero arbitrio" deals in detail with the problem of 
the free choice, it is unnecessary to dwell upon either at greater 
length. 1 It was a scientific duty and a necessity to start with 
this explicit negation of moral freedom and not to avoid its dis- 
cussion; since at the bottom of every research in social science 
one is confronted by this problem. If passed over in silence it is 
a continual source of misconception and inadmissible objection, 
particularly in researches in criminal law so intimately connected 
with human psychology. 

§ 205. Free Will is Denied by Science. 

Leaving to time and the natural expansion of positivistic ideas 
the task of gradually restricting the common belief in free choice, 
we must now take up two facts of great importance in the direc- 
tion which the criminal sciences will take. In the first place, ad- 
mitting that the negation of free choice is open to discussion and 
that this question is not to be settled in a peremptory fashion, how 
can criminal science and legislation base the whole edifice of human 
responsibility upon a faculty, so stoutly denied even by orthodox 
thinkers and disproven every day by the most irrefutable observa- 
tions of fact? There is no objection to a personal belief in the 
existence of free choice, or moral liberty by criminologist, legisla- 
tor, or judge, but can criminal law have the force and dignity of 
a true science when given a foundation so actively attacked on all 
sides? The necessity of withdrawing this criminal law and the 
social function which it regulates from philosophical discussions 
should be seen. This special plea which I had already formulated 

1 Ferri, "Teoria dell' imputabilita." It may not be profitless, in view of the 
polemic artifices of certain adversaries, to state once again, that I maintain now 
only the first part of this book, which I wrote when I was only twenty-two years 
of age and I have republished it in " La negazione del libero arbitrio ed altri saggi " 
(Turin, 1900). But the second part (the theory of imputability), does not any 
longer correspond with my scientific ideas, which have been developed and com- 
pleted by submission to the proofs of scientific observation. It contains only an 
imperfect formulation of a theory which is correctly stated in this Part III. 



§ 206] THE NEGATION OF THE FREE WILL 299 

and developed in 1878 is so striking that it has already impressed 
the Italian legislator who in announcing a desire to follow the 
traditions of the classical school has nevertheless recognized that 
the formula of the liberty of election is "too abstract, too much 
disputed, and too much controverted to become the cornerstone 
of penal responsibility." l Philosophy itself, moreover, and aca- 
demic criminal science are making concessions, notwithstanding 
that even in scientific evolution "natura non facit saltus." 

§ 206. Equivocal Meanings of Moral Liberty. 

I have referred 2 to the eclectics in France who now implic- 
itly declare that "to take free choice as the basis of responsibility 
is to enter theoretically and practically upon a road without issue 
by relying upon an element whose presence is most frequently a 
mystery and escapes all the determinations and measures of which 
life has need. " 3 Notwithstanding this declaration, which ex- 
pressly excludes free choice, the equivocation remains, since where 
they still speak of "liberty" the sense is vague and they do no 
more than displace this mysterious point of psychic being, where 
consciousness discloses to us the unity "individualized" and 
integrated by the word "ego" itself. 4 This may suffice as a 
play upon words but it clearly fails to solve the problem which 
admits of no middle term between free choice and determinism. 
Or again, "liberty" is understood to be simply the physical liberty 
which consists in the absence of obstacles to the development of 
personal tendencies and activity in so far as they are developed 
by the constitution of the individual and environment. On this 
point we are perfectly in accord, but then we have reached full 
physical and moral determinism. In this sense the waters of a 
river are free too where no dam prevents them from flowing ac- 
cording to the determining law of gravity. It is for this reason, no 
matter what certain adversaries may say in mistaking the differ- 
ent significations of the word "liberty," that the negation of moral 

1 "Relazione ministeriale sul progetto di codice penale" (Rome, 1887), I, 
163. 2 0-> ante. 

3 Moriand, "La question de la liberte et de la conduite humaine" (Paris, 1897), 
p. 194; Cuche, "De la possibility de l'ecole classique d'organiser la repression penale 
en dehors du libre arbitre" (Grenoble, 1897); Saleitles, "Individualization of Pun- 
ishment" (Little, Brown & Co., 1911), p. 140. Such a rabid spiritualist as Bru- 
netiire, R. D. M. (1st November, 1891), holds with a concealed spiritualist like 
Tarde, that the basis of legal responsibility does not require free will. Another 
spiritualist, Proal, took him to account for this, "Le crime et la peine," p. xxx. 

4 Saleilles, " Individualization of Punishment " (Little, Brown & Co., 1911), p. 140. 



300 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 206 

freedom which does not exclude either the physical liberty of 
movement nor the liberty of the development of each one's heredi- 
tary personality, in a given environment, excludes none of the 
liberties (in the physical order) of the citizen, such as personal 
freedom to come and go, civil, religious, or political liberty. 1 
So true is this that only in epochs and by men metaphysically 
committed and intolerant of discussion of the moral freedom 
of the human will, were civil, religious, and political liberty out- 
rageously denied and trampled under foot. Or, again, by this 
equivocal "liberty" there is understood a kind of attenuated 
free choice, diluted, shorn of its most palpable contradictions by 
actual data, and the same error arises, and through excess with- 
out the advantages of a candid and open determinism, all the 
inconveniences of the old free choice of the metaphysicians result. 
There is nothing really logical and conceivable except absolute 
freedom of choice and absolute determinism. Every intermedi- 
ate conception is unsound, and whatever satisfaction it may give 
to the instinct of utility in personal eclecticism, which, among 
tried people, lovers of tranquil life and undisturbed surroundings, 
is one of the most common forms of mental timidity (when it is 
not a means of picking one's road) and in any event, only raises 
difficulties at every step. 2 If finally we understand 3 this vague 
and equivocal word "liberty" as the internal energy which every 

1 This is exactly the sense in which Ardigo says, in "Sociologia" ("Opere," 
Padua, 1886, IV, 35), "Liberty consists in that wherein the coordinate part of 
society can function, following its natural disposition, which fits it to function." 

2 Three writers, among many, agree upon this, although taking points of view 
diametrically opposed. They are Fioretti, "Per il determinismo," in the "Eivista 
di giurisprudenza" (Turin, 1885), p. I; Innamorati, "I nuovi orizzonti del diritto 
penale e l'antica scuola italiana" (Perouse, 1887), p. 196; DeBade, "Une question 
touchant le droit de punir," in the "Revue neo-scholastique" (February, 1897). 
Among numberless essays of eclectic theory, I will only mention " La liberte morale " 
(Paris, 1888), by Joyau, where it is said that freedom does not mean free will in 
the spiritualistic sense, but only "the power to determine to do right willingly. 
To do evil voluntarily seems to me impossible"; p. viii. This is the old Socratic 
idea that man does wrong only through ignorance or error, believing that he is 
doing right; but this belief is without scientific base, unless it means that the de- 
linquent intends his own good. For, we need only to recall what criminal psychol- 
ogy teaches that certain delinquent or insane (in case of diseases of the will with 
minds unimpaired), either habitual or congenital, know that they are doing wrong, 
and yet commit the misdeed, through lack of repugnance to it. For the eclectic 
sense (of relative liberty "as a synthesis of the ideas of freedom and necessity"), 
see also Naville, "Le libre arbitre" 2d edition (Paris, 1898), and Torantino, "Sag- 
gio sulla voluntA" (Naples, 1897). 

3 Ideas recently sustained by Van Celher, "Die strafrechtliche Zurechnungs- 
fahigkeit" in the "Deutsche Juristenzeitung" (1897), p. 2. 



§ 207] THE NEGATION OF THE FREE WILL 301 

man possesses to develop in an entirely individual way, peculiar 
to himself and different from others since each has a special physio- 
psychological temperament, which causes him to react in a special 
manner to the different environmental influences, then we are also 
in accord. But from that position it is sought to make argument 
to the effect that determinism reduces man to the condition of an 
automaton and all nature, physical and moral, to a mere fatalistic 
mechanism. Therein is an error: for on the contrary, it is be- 
cause all human action is the necessary and inevitable effect of 
determining causes that each man has his own personality and 
physiognomy, both moral and physical, by which he is distinguish- 
able from every other being and by which, also, the same external 
causes being present, he responds in a manner peculiar to him- 
self, different from that of other men and differing also in himself 
with varying conditions of time and place, since the condition of 
the organism changes. For this reason every act performed by 
a man is his own act as the index and necessary effect of his 
organism and personality. The first germ of imputability in the 
physical sense is that whereby we begin to impute to every man 
and to put to his account the acts which he has physically done. 

§ 207. Examples of Equivocal Meaning of Liberty. 

Let us take some examples. Let us suppose that we have 
two sewing-machines of a given system. Once put in motion 
they respond and react constantly in furnishing equal work to 
sew the material in a special way. The external motive cause 
constantly obtains an equal reaction from these machines in 
every circumstance of time and place. If, however, we take two 
plants of the same species and variety and put them in the same 
field under the same temperature and with the same nourishment, 
we do not get identical reactions. One grows straight, the other 
crooked; one grows vigorously, the other withers. Now the 
reason of this is that with inorganic machines the ultimate reac- 
tion depends solely, or at least principally, upon the exterior 
causes, for each, as Spencer remarks, has its own physiognomy and 
constitution even when the construction is identical; l whereas 
among organic beings of the vegetable order, the action of inter- 

i Spencer, "Essays," III, 272. In "La bete humaine," Zola, who, for the first 
time, introduced the born-criminal (in place of the insane criminal or one by pas- 
sion)' into art, says that every locomotive engineer learns through experience the 
"mechanical temperament" of his engine. 



302 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 207 

nal and physiological causes is combined with the action of exter- 
nal causes and therefore these two series of elements combining 
in different ways may, and do, give different reactions, even when 
the exterior causes remain the same. To ascend from the vegeta- 
ble to the animal world and to take for examples two dogs of the 
same breed and the same age, we see that stimulated by the same 
exterior cause, such as the sight of a man, they respond in very 
different ways: one runs away or barks, the other caresses or bites. 
The same dog at different times responds or reacts differently 
to the same exterior cause. Here the differences of ultimate reac- 
tion may be even greater than in the preceding case. If, in the 
case of the machines, there are only exterior causes, and in the 
case of vegetable organisms external causes and internal physio- 
logical causes, there are in the case of animal organisms both of 
these causes and internal psychological causes in addition. It is, 
therefore, natural that with increase in the series of factors, the 
number of their possible combinations should also increase and 
consequently that the ultimate reactions for the same external 
cause would be more varied. In leaving the vegetable kingdom, 
and ascending in the zoological scale, the differences are multiplied 
for different individuals and for different moments in the life of the 
same individual, because the physiological and psychological 
elements are more developed. Hence, if we take two men in the 
same moment or the same man at different moments we shall find 
that there are very great differences in his reactions to the same 
exterior cause; not that there is innate in man some new element 
of moral freedom, but simply because the psychic factors of action 
are more developed and complicated. Every being, and hence 
every man, has a peculiar and special manner of responding to 
exterior influences. It has a necessary dependence for each mo- 
ment of life upon the exterior conditions combined with the physio- 
psychological state of the organism. To give precision to this 
thought by an apparently unusual phrase, it could be said that 
man is a machine but he is not made like a machine. He is a 
machine in the same sense that in his acts he supplies nothing 
more than what he receives from his physical and moral environ- 
ment. Like every other living being, he is only a machine subject 
to the universal law of causation by virtue of which, at a given 
moment, in a given combination of physiological and psychic 
causes, he must react in a given determinate manner. But he is 
not made like a machine. He is not an inorganic mechanism 



§§ 208, 209] THE NEGATION OF THE FREE WILL 303 

for the very reason that he is a living organism with his own 
special manner of responding to external causes. His response is 
in each case necessarily determined by the physical and physio- 
psychological causes which have gone before. The response is 
variable, and hence often impossible to foresee in different individ- 
uals or in different moments because of the various combinations 
of these manifold determining causes. 1 

§ 208. Denial of Free Will is not Fatalistic. 

It is, therefore, a mere illusion to think that the negation of 
free choice makes of man an automaton, subject to Moslem fatal- 
ism. So far are men from being automatons that each has his 
special manner of reaction against the exterior environment. 
Such variety does not exclude but demands physical and moral 
determinism, since otherwise, if man possessed a freedom which 
made him more or less independent of determining causes, one 
could no longer understand personality itself as the permanent type 
of individual character. 

§ 209. Limited Moral Freedom ; Conclusion. 

To return to the eclectic hypothesis of limited moral freedom, 
it is not easy to be content with a theory which is so strangely 
refuted in our day and according to which "man is subject to 
general laws; but within the limits of these laws, which are the 
conditions of universal life, he retains a relative liberty sufficient 
to keep intact the principle of individual responsibility." 2 Seek 
as we may for what basis of solidity there may be under the verbal 
appearance of this gratuitous declaration, the question arises at 

1 This positive manner of considering the physio-psychological organism of 
man lends itself to the solution of other sociological problems: for example, eight 
hours' labor. If man were an inorganic mechanism, it is certain that by working 
twelve hours a day he would produce twice as much as by six hours' work. But, 
although this is true for all inorganic machines (and yet machines have need of 
repose), it is not true for man, who is an organicorphysio-psychological working ma- 
chine. A workingman who works fourteen hours per diem does not produce twice 
as much as he who works seven hours, because the last hours are poisoned by mus- 
cular and nervous fatigue. This accounts for the fact that most accidents occur 
during the latter period. Shorter working hours, which have been tried in some 
industrial establishments, prove that an eight-hour day (because of the decrease 
in fatigue and the psychic encouragement of a short day) does not di min ish the 
quantity (not to speak of the quality) of the product to a degree harmful to the 
profit of the capitalist. See Ferri, "Socialismo e scienza politica." 

2 Prius, "Criminalite et repression," p. 39, and "Science penale et droit posi- 
tif " (Brussels, 1899), p. 162. 



304 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 209 

once what and where are the limits of general laws. If a law, the 
condition of universal life, merits the name, such as the law of 
gravity, or the law of causation, there are no limits to its appli- 
cation and it admits only of apparent exceptions. A gap between 
one law and another in which this last remnant of relative liberty 
might take refuge cannot be admitted. Moreover, admitting 
that the moral freedom of man is limited, there arises at once 
this problem for which there is no solution. In human activity, 
which is a continuous total, does determinism pass into moral 
liberty by a sudden leap or by a gradation of indistinct shades? 
This is a decided difficulty. Since it is a principle of these crimi- 
nologists that imputability exists and expands in proportion to 
the moral freedom of human activity, it is necessary as soon as 
possible to separate the part imposed by necessity, and, hence, not 
imputable from the part still supposed to be morally free and 
imputable. Again, all of the arguments of fact produced against 
absolute free choice apply with equal force to limited free choice 
for the logical and experimental objections which are valid against 
a meter of free choice are also valid against a centimeter of it. 
Then we are face to face with another insurmountable difficulty: 
why is this moral liberty of man limited and suppressed by exter- 
nal and internal circumstances up to a certain point and not 
beyond it? Given the influence of climate and race on the 
criminality of a people and the influence of annual climate, 
agricultural production, and density of population, it follows as a 
necessary consequence that the judge, in harmony with the theory 
that he must grade offenses according to degrees of moral liberty, 
should include in his calculation a number of elements and factors 
external to the individual. It would be necessary for him to 
consider the degree of latitude where the misdeed was committed 
and the reading of the thermometer; he would have to measure the 
cubic feet of fresh air at the disposal of the offender, perhaps 
forced to vegetate in a squalid hovel and curl up on a miserable 
pallet crowded with adults and children; he would have to estimate 
that part of the criminal impulsion traceable to the lamentable 
conditions of the family and social environment; finally, it 
would be necessary for him to risk himself in a chimerical enter- 
prise of physical, physiological-psychic, and social evolution 
entirely beyond human ability. 1 If you take into account 

1 So said Fouillee, in "La science sociale contemporaine" p. 305, who, however, 
is an eclectic. This shows the inanity of the work of certain eclectics, for example 



§ 210] THE NEGATION OF THE FREE WILL 305 

age, sleep, the affliction of the deaf mute, intoxication, why should 
you refuse to calculate also the degree of instruction and of edu- 
cation, the profession, civil state, domicile, economic situation, 
and sanguine or nervous temperament of the accused? Are these 
four or five recognized circumstances, which are apparent the 
only ones that may influence moral freedom and hence moral 
culpability? If all the circumstances are taken into considera- 
tion, what becomes of the residuum of moral freedom which is 
considered indispensable as the legal basis of human responsibility? 
And with this traditional system of a more or less complete moral 
imputability, how can there be a single judge who is not lost in 
this hopeless labyrinth? Familiarity with the weak avowals to 
which the eclectic partisans of "relative liberty" are reduced 
suffices to show it is not tenable. 

§ 210. Limited Moral Freedom Impotent to Sustain Criminal Law. 

Prius maintains that between men relatively normal (to whom 
normal repression should be applied) and men absolutely abnor- 
mal (as shown by pathology) "there is an intermediate zone of 
degenerates, of incomplete neurasthenic, ill-balanced beings for 
whom the problem of responsibility cannot be stated and if 
stated cannot be solved." 1 It is evident that such language pro- 
claims the theoretical and practical impotence of penal justice 
founded on this archaic remnant of relative liberty or mutilated 
free choice. And this is not the worst of it; for the reply may be 
made: "Very well, we will take into consideration these newly 
discovered factors of crime to the extent that our knowledge 
permits. You make our task more difficult, but you do not prove 
its absurdity." Herein lurks a real and serious social peril, an 
unavoidable consequence of the doctrine of limited or relative 
liberty, for it follows, from this doctrine, on the one hand, that 
the least dangerous are nevertheless the most severely punished, 
since in their slight offense there is no examination into their 
psycho-pathological conditions, which, on the contrary, are gone 
into where there are more serious offenses committed by more 

of Alimena, who, publishing in the year of grace 1889, three large volumes on 
"the limits and modifications of imputability," wastes his time examining the tra- 
ditional circumstances, capable of modifying and measuring human responsibility 
which our grandfathers have catalogued in their works on criminal science as if 
criminal psycho-pathology and sociology have taught us nothing new on the gene- 
sis of human acts. 

1 Prius, "Science penale et droit positif," No. 275, p. 166. 



306 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 210 

abnormal and more dangerous evildoers. On the other hand, the 
latter are, as we see every day, illogically acquitted or given 
greatly reduced punishment in connection with dangerous mani- 
festations of atavic criminality. They have so upset the penal 
justice of our times that the necessity of applying a remedy is 
not always obvious. 1 There are only two possible means of 
remedying it: either a complete return to the former absolute 
theories of free choice, or a candid and complete acceptance of 
all the results and conclusions of the positivistic sciences. With 
the system of limited free choice it is impossible, as is constantly 
more clearly seen, to avoid social and individual dangers and 
absurdities. The very evident reason is that the principle that the 
moral responsibility of man expands and shrinks in proportion to 
an elastic free choice, is a recognition, on the one hand, of an 
undisputed freedom of choice among the authors of slight crimes 
(who are nevertheless worthy of comparison), and, on the other 
hand, an admission of it only in an extremely attenuated form in 
the most inhuman criminals. Herein lies the danger and scandal 
of the acquittals by which the latter profit. Counsel for the defense 
will always find a quantity of personal, physical, or social cir- 
cumstances to destroy or diminish the moral liberty of any man 
charged with an unusual and savage crime, and which, exactly 
as the classicist, Rolin, says, "shows more and more how uncer- 
tain is his responsibility." 2 They have gone so far as to make 
this absurdity, danger, and iniquity a theory and general rule. 
That has been done by the Review which is the organ of the classi- 
cal jurisprudence and by its director Luccini, who, with the "Sim- 
plistes du droit penal," translated into French if you please, has 
undertaken a systematic refutation of criminal sociology. This 
Review has maintained the thesis that the new penal code should 
establish a mitigation of penalties and even (conformably with 
the opinion of certain German jurists) the complete abolition of 
all perpetual punishment 3 for all delicts (therefore even for the 
atavic forms of criminality). On this account, Garofalo 4 replied 
in the name of the positivist school by contesting this tendency 
to an indefinite mitigation which really threatens to go so far as 
the complete acquittal of the most inhuman criminals, it being 

1 Rolin, "La pena di morte" (Lucca, 1871). 

2 Ibid., pp. 35, 36. 3 R. P. May, 1882. 

4 Garofalo, "I pericoli sociali di alcune teorie giuridiche," in the "Archivo di 
psyehologia e scienza penali," III, 4. 



§ 211] THE NEGATION OF THE FREE WILL 307 

understood that forgetting the honest victim, they generalize 
on the argument of Holtzendorff who, replying upon the fact that 
the value of personal liberty has increased, would punish the 
assassin with only a temporary penalty. 1 They forget, as Bar- 
zilai well said (also in the name of the positivist school), that the 
liberty and lives of the victims have also increased in value. 2 
Following the same road, they propose to concede to the jury 
the legal faculty of allowing extenuating circumstances. 3 

§ 211. Theory of Limited Moral Freedom in Practical Jurisprudence. 

If we pass from the field of science and legislation to that of 
practical jurisprudence, we find that in trifling occasional delicts, 
where less notice is taken of these physio-psychological anomalies, 
necessarily more obvious in the dangerous criminals, the ancient 
severity of penal justice exercises all the absolutism of the old 
theories of responsibility. Thus we observe the present spirit of 
penal justice suffering from a double error and a twofold de- 
moralization, since by a misunderstood application of the new 
scientific data, it offers the most improvident impunity or indul- 
gence to the more dangerous criminals, keeping its severities, as 
disproportionate as they are harmful, for the less dangerous, that 
is, for occasional criminals. Public opinion, ill-informed in these 
matters and always hostile to innovation, at the beginning im- 
puted to the new criminal school a tendency towards the impun- 
ity of all criminals (an imputation made against the school of 
Beccaria a century ago). On the contrary, the tendency to an ex- 
clusive exaggerated and ever-increasing clemency for the more 
formidable criminals is the actual result of classical penal law, 
mixed with a few of the most obvious results of the physio-psy- 
chological sciences. 

i Holtzendof, "Das Moral und Todeastrafe" (Berlin, 1875), p. 225. 

2 Barziloi, "La recidiva ed il metodo sperimentale," R. C. (1883), p. 462. 

3 Bozerian, "Projet de loi sur les circonstances tres attenuantes," presented 
before the French Senate, April 4th, 1885, "Bulletin de la societe des prisons" 
(1885), p. 95; Grandperret, "Les circonstances tres attenuantes," id. (1886), 
p. 508; Berthear, "Reformes pratiques" (Paris, 1886), p. 46, who combats the prop- 
osition; Eugues, " La cour d'assises et le nouveau code destruction criminal" in 
"France judiciaire" (1887), No. 7; Leloir, "De la frequence des acquirements et 
du projet de loi sur les circonstances tres attenuantes," id. (1887), p. 65, and 1888, 
p. 46, who is also opposed to the project. 



CHAPTER II 

THE PROBLEM OF PENAL JUSTICE WITH THE DENIAL OP 

FREE WILL 

Natural defensive reaction. Present reaction. Ethnical character of retributive 
justice eliminated from the defensive function. Freedom of this function 
from criteria of liberty and moral defects. 

§ 212. Penal Law Denying Moral Liberty. 

Aside even from the palpable refutations by physio-psychology 
of the presupposition of free choice or moral liberty, we have 
seen how fully the theoretical and practical impossibility of 
resting man's responsibility for his crimes upon free choice, either 
absolute or relative, is proven. But then, if man commits mis- 
deeds not by the free choice of his will, but by the fatal tyranny 
of his abnormal organism and his environment, the question 
arises, how can he be punished and made responsible for faults 
which are not his? Open the prisons and close the courts, be- 
cause partisans of the positivist school deny and exclude the 
free will! If you cannot decide to do this, since the thing is too 
absurd and perilous, you can no longer talk of penal law and 
punitive justice except by formal contradiction of terms. Such 
is the ordinary objection, as spontaneous as it is ill-founded. It 
is made by all those who believe themselves able to solve such 
problems off-hand by following the first impressions of sentiment 
and of all those who are unable to free themselves from the nat- 
ural and deceptive tendency whereby, as Bain observes, "every 
novel manner of conceiving a thing or a problem is taken as its 
negation." 1 

But such is the true problem, the fundamental problem 
which presents itself to the new science of crimes and punish- 
ments. It would seem that it is incapable of solution or ca- 
pable of it only by syllogistic subtleties. Yet it has a clean and 
accurate solution in the mere investigation of social facts which 
always have sought and always will seek their genesis and justi- 
fication in the natural conditions of human life and not in the 

1 Bain, "The Mind and Body." 
308 



§213] THE PROBLEM OF PENAL JUSTICE 309 

metaphysical theories of jurists. Before taking up the solution 
of this problem by the mere light of social facts we encounter a 
preliminary question as to method which will seem to put us on 
the road. The observation is this: The point of departure and 
pivot of this problem being the negation or exclusion of all idea of 
moral liberty as the condition or measure of responsibility, it 
follows that to be logical and avoid difficulties and contradictions 
exactly similar to those from which we are endeavoring to escape, 
the problem must be transported to a field entirely different from 
that wherein it has heretofore remained. Social theories are 
not like those American houses which may be moved from one 
place to another and rest upon their new foundations just as 
firmly as upon the old. Penal justice is founded either upon 
the idea of free will (whether absolute or relative, explicit or 
implicit, makes little difference) and hence may continue to 
rest upon the ancient criteria open at most to a few partial 
superficial reforms; or else penal justice is founded upon the 
natural determinism of human acts and consequently upon the 
data of anthropology and criminal sociology, therefore requiring 
radically different criteria to be sought in corresponding institu- 
tions and judicial and administrative mechanism. The eclectic 
tendency, on the contrary, through its stubborn tenacity, would 
keep the foundation without changing anything and content 
itself with verbal innovations. Nevertheless, the point of arrival 
must completely change where the point of departure is so com- 
pletely displaced. This idea (elsewhere indicated) x I propose 
to develop if only to satisfy the preliminary question. 

§ 213. Basis of Responsibility. 

There are two orders of facts necessary and sufficient to define 
the problem of responsibility according to the method of the 
positive school, that is, of the conditions, where the individual is 
passive to measures of preservation and defense which can and 

1 "II diritto di punire come funzione sociale," in "Archivio di psichologia e 
scienza penale" (1882), Vol. Ill, Fasc. I. Hamon is wrong, therefore, in his 
" Determinisme et responsabilite," p. xi, when he says, "in relation to responsi- 
bility and penology no one of the partisans and followers of the school of Lombroso 
has gone to the logical conclusion of the doctrine." For his conclusion that moral 
irresponsibility is the consequence of determinism, and that, therefore, all beings 
are (morally) irresponsible, was developed by me in my second edition in 1892, in 
the third chapter, which follows (like the other parts of the book) without funda- 
mental change. 



310 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 214 

must be undertaken by the State, with reference to offenses com- 
mitted by him. (a) As in every other natural research pursued 
in accordance with the doctrine of evolution, the first thing is 
the matter of origin and development, whether it be the punitive 
function, or the organs whereby it is exercised in the progress of 
time. These past facts will give us the genesis and explanation 
of existing facts, (b) The second thing is the examination of the 
social facts concerning responsibility, facts that develop every 
day and which lie outside of all the theories metaphysical jurists 
can construct in their closets with however logical and symmetri- 
cal order but yet with an altogether philosophical forgetfulness of 
the realities of life. 

§ 214. Need of History to Determine Basis of Responsibility. 
A geologist and a zoologist who wishes to explain the where- 
fore of the actual configuration of the globe or of the living fauna 
would in our day be ridiculed, if he limited himself (as for a long 
time the classical schools of geology and biology did, not without 
advantage in their preliminary study) to the mere descriptive 
examination of existing forms. On the contrary, they succeed 
more and more in dissipating the shadows surrounding the mys- 
tery of life and obtain results of prodigious value when, following 
the glorious paths of Lyell and Darwin, they fix their gaze on the 
prehistoric epochs buried for many thousands of years and de- 
mand of these and the external succession of living species the 
key to so many secrets. Sociologists and criminal sociologists 
must do the same for the same reasons. They cannot confine 
themselves to purely descriptive and syllogistic anatomical re- 
searches (the field of the classical criminal school), to researches in 
delinquency and criminality such as they appear to-day in civil 
society or as they are observed denuded in the microcosm of 
history. They must seek in the most remote manifestations of 
fife the elementary and distant germs of the penal function so 
complexly constituted, which must be regulated according to the 
exigencies of actual life. For this reason, on another occasion, 
in studying the crime of homicide according to the criteria of the 
positive school, I thought it necessary to seek in the prehistoric 
ages of human life the germs and natural evolution of that crimi- 
nal act and the penal reactions provoked by it. 1 Every living 
creature struggles for its existence; hence, every act which attacks 

1 Ferri, " L'Omicidio," Introduction. 



§215] THE PROBLEM OF PENAL JUSTICE 311 

his natural conditions of individual or social existence determines 
a defensive reaction on his part which is direct when the harm- 
ful consequences of this attack can be then and there avoided, and 
indirect when by punishing the author its repetition can be avoided. 
This is the primitive, irreducible, elemental fact. It constitutes 
one of the basic characteristics of organized or living matter. It 
is woven into the essential conditions of sensibility and move- 
ment. It is shown in the most elementary forms of life, in the 
simple protoplasm as in the plant. Step by step it follows all the 
successive complications and attains the most complex and highest 
forms of individual and social defense, direct and indirect. In 
its progress it is complicated with other physical and psychic 
elements, in the means of defense and in the feelings and ideas 
which accompany them and which are transmitted by heredity. 
But it always retains the primitive base just indicated. 

§ 215. Evolution of Defensive Reaction. 

Biology and sociology, far from being in a mutual relation of 
succession or of real and strict independence, are concomitants 
and parallels, since animal life from the beginning is shown in a 
double series of individual and social organisms. 1 Regardless 
therefore, of the changing and distinct predominance of the indi- 
vidual or social form in the different phases of human evolution, 
we still see both forms of defensive reactions constantly occurring 
everywhere that we find animal and human life. Of this we find 
an indirect proof in the constant observation that in all of the 
manifestations of social life, all different forms and diverse types 
coexist with the successive predominance of one over the other. 
It would be erroneous to believe that the different forms of sexual 
and family relations (promiscuity, matriarchy, patriarchy, poly- 
andry, polygamy, and monogamy) were successive, one institu- 
tion taking the place of another. They have always coexisted 
and still coexist even in civilized society, now one, now another, 
has predominated, and that in the order indicated, but without, 
for example in Western Europe, the exclusion by monogamy (the 
legal and predominant form) of extra-legal forms of polygamy 
and polyandry. The same may be said of the forms taken by 
property in land (collective, communal, and individual), which 
still coexist in spite of the excessive predominance of the individual 

1 Rabbeno, "Dei rapporti fra la biologia e la sociologia," in the "Rivista di 
filosofia scientifiea" (March, 1883). 



312 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 215 

form. 1 The same is true of political forms and in general of the 
different types of social constitution under the two opposite (war- 
like, military, and pacific-industrial) forms. In like manner, the 
individual and collective forms of defense have always existed 
and still exist, although one or the other has always predomi- 
nated. Even in the lowest animals, in the protozoic kingdom, 
defensive reaction under the form of irritability is observed not 
only in the individuals taken separately, but also in the animal 
colonies which react in cases of collective perils; and in such cases 
they always react under the form of social defense. This becomes 
more evident as we ascend in the zoological scale and find social 
life under forms more nearly approaching those of humanity and 
the association of individuals more and more developed in the 
organic and psychic relation. Furthermore, even among animals, 
especially among the more intelligent mammals, we already reach 
the higher phase where social defense is no longer exercised by 
the collectivity but by its chief. It is exercised certainly in a 
personal interest, but in a collective interest at the same time, 
exactly as happens in savage or barbarian society. Indeed 
many herbivorous mammals live in society and there is then al- 
ways an individual who exercises a certain authority over the 
others, who guides and defends them. This is true of elephants 
horses, buffaloes, and apes. 2 Now this evolution of defensive 
reaction is repeated in an entirely analogous way among men. 
There are savage tribes where individuals live isolated without 
any chief and among whom every attack on the conditions essen- 
tial to existence produces in the victim a purely individual and 
transitory reaction, not subject to any tribal rule and regarded 
as a purely private affair. The sole judge who decides whether 
an act is or is not criminal, that is, harmful or dangerous, the sole 
executioner of the judgment, is the individual attacked who 

1 Lavellaye, "Les formes primitives de la propriete" (Paris, 1888); Letourneau, 
" L'evolution de la propriete" (Paris, 1889). 

2 Brehm, "La vita degli animali," Italian translation, Turin, 1872-1875, 
Vol. I, pp. 29, 46; Espinas, "Les societes animales" (Paris, 1878), 2d ed., 
p. 450. Facts show how inexact are the "a priori" statements of Letourneau, in 
" L'evolution juridique dans les diverses races humaines " (Paris, 1891), p. 13, where 
he says that bees and ants have " an absolute attachment for the collectivity, which 
protects them from every anti-social temptation," and that consequently, they have 
no "juridical instinct," lacking the need of it. Furthermore, however, at page 15 
Letourneau contradicts himself, for, while stating that in general "animals lack 
a juridical sense," because, he says, in order for them to have it, the sentiment of 
defense would have to be transformed into one of vengeance, and yet he later cites 
cases of vengeance in animals. 



§216] THE PROBLEM OF PENAL JUSTICE 313 

reacts with the intent of present and future defense; and, pro- 
voked by resentment and desire for vengeance, which already 
exists among the animals, he usually exceeds all bounds. This 
is what happens, for example, among the anarchic tribes of cen- 
tral Africa, among the Caribs, Fuegians, North American Indians, 
and Esquimaux. 1 The defensive reaction under this individual 
form may (as Puglia remarks) be shown in two different ways; 
either as an immediate and instantaneous reaction at the mo- 
ment of aggression; or as a repressed reaction delayed for a more 
opportune time, which is, strictly speaking, a real vengeance, 
according to Puglia, 2 whose distinction agrees with the facts. 
It is the psychological reflection of the distinction which we have 
just made between direct and indirect offensive reaction. But 
this difference does not mark two successive epochs. In the 
first place, proof of succession is lacking, and, in the second 
place, it is easy to believe that in each case the temperament of 
the injured and the opportunity presented determined the prompt- 
ness or the delay of the defensive reaction among primitive men, 
as, indeed, among the higher animals (Darwin has cited instances 
of this). 3 

§ 216. Identity of Military and Legal Reaction. 

Spencer 4 makes an important observation on this subject 
when he points out the primal and fundamental identity or inti- 
mate analogy between the defensive reaction against a foreign 
agressor (military defense) and against a domestic agressor (legal 
or judicial defense). 5 We come upon this indentity not only in 
the facts of human sociology reported by this great philosopher 
but also among the facts noted in the sociology of animals. In- 
deed, among these, the individual or collective reaction is produced 
in the same manner and for the same reasons, whether the agres- 
sor belongs to a strange tribe or is a member of the same society. 
In primitive humanity, as Spencer says, we notice, especially 
when the judicial defensive reaction begins to prevail as a social 

1 Lubbock, "Les temps prehistoriques et l'origine de la civilisation" (Paris); 
Lelourneau, "La sociologie," pp. 444 et seq., and "L'evolution juridique dans les 
diverses races humaines," Chap. I, § VI. 

2 Puglia, "Evoluzione storica e scientifica del diritto e della procedura penale" 
(Messina, 1882), pp. 30, 31. Likewise, Zocca-Rossa, "L'eta preistorica del diritto 
penale a Roma" (Catane, 1883), pp. 9 et seq. 

3 Darwin, "Origin of Species." 

1 Spencer, "The Principles of Sociology." 

6 Darwin, "The Origin of Species." Likewise, Spencer, "Bases of Morals." 



314 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 216 

and permanent function, its motive principles and organs of 
execution are the same as those of the military defense but that 
it departs therefrom and differentiates more and more in the 
ultimate phases of its evolution. This community of origin, which 
even the living language preserves and reveals in the traditional 
expressions — the sword of justice, a public enemy — used in 
purely judicial matters, is observable as an atavic return, when 
in times of social upheavals, the dominant class resorts to the 
creation of extraordinary military tribunals to judge and condemn 
not so much the actual criminal material acts (homicide or arson) 
as mental crimes of political heterodoxy. It is, however, natural 
that the transitory and excessive individual form of defensive 
reaction and vengeance should early begin to yield to the coexis- 
tent social form. This occurs first in the direct reaction of the 
collectivity, afterwards in an official duty exercised by the chief 
in the name of the tribe. This is unavoidable on account of the 
social interest in order to prevent (as Darwin says) * a tribe 
decimated either by enemies from without or, what is still worse, 
by its own members from losing, with respect to other tribes, the 
forces necessary in the struggle for existence. Individual reac- 
tion being in its nature excessive and in turn provoking new and 
sanguinary reactions, the collectivity quickly feels (as Spencer 
remarks) the need of suppressing or limiting these continuing 
causes of weakness. The predominance of "public vindication" 
over the vengeance of individuals begins with a mere interfer- 
ence by the collectivity in private quarrels, giving place to the 
judicial rules and institutions of feuds, composition, and protec- 
tion to the wrongdoer himself when threatened with the exces- 
sive reaction by the victim. These customs which we find among 
many savage tribes and which once existed in the civilizations of 
Mexico, Greece and Rome, the Orient, and in Europe of the 
Middle Ages, although they to-day seem to represent a barbar- 
ous state of penal justice, were in their own times a great moral 
and social progress in restraining the excessive violence of the 
reactions of individual or family vengeance. The punishment of 
crime like military defense 2 finally becomes an exclusive attri- 
bute of the State. This unquestionable portion of truth is con- 

1 Darwin, "The Origin of Species," Likewise, Spencer, "The Basis of Morals." 

2 For interesting historical date, see Cherry, "Lectures on the Growth of Crim- 
inal Law in Ancient Communities" (London, 1890), and republished in the "Scuola 
positiva," 31 July, 1891, p. 276. 



§216] THE PROBLEM OF PENAL JUSTICE 315 

tained in the system of such writers as Rousseau, Beccaria, Filan- 
gieri, and others, who hold that the State's right to punish is based 
on the grant by all the members of the association who reassume 
this right in a transitory way when the State is unable to exer- 
cise it for their protection (as for example, in the cases of self-de- 
fense). Although Fouillee, de Greef, and other sociologists to-day 
rightly give great importance to the contractual element in social 
organisms, the inaccuracy of that theory and the part now re- 
jected is the artificial character given to the processes whereby 
the reaction of defense and vengeance ceased to be individual and 
became social. Considering the different forms of defensive 
reaction from the simplest movements of the individual up to 
the high punitive function of the State, and observing the organs 
of this function, we note that they only begin to form when the 
transitory acts, whereby the injured individual or society react, 
have been replaced by a permanent duty reserved to the chief 
of the tribe. At the beginning he is not only law-giver in cases 
where custom has as yet imposed no rule; but he is judge and 
executioner of his own sentence. This is the prehistoric germ 
of the principle afterwards repudiated by science — that justice 
emanates from the king. Later in the ulterior stages when the 
social body has become more complex and its functions more 
complicated, the chief of the tribe delegated to a few ministers 
first the execution of his administrative or judicial orders and 
finally the right to insure judgments and decrees. These min- 
sisters and agents of his will, in whom at first because of the 
identity between these two functions the military character was 
united with the sacerdotal (as in the chief of the tribe who is 
always both commander-in-chief and high priest) finally became 
magistrates of an exclusively judicial character due to the in- 
cessant differentiation taking place in the functions and the social 
structure. This is exactly what we observe among civilized 
peoples. 1 

1 See proof in Spencer, "Principles of Sociology, Vol. Ill, p. V, Chap. XIII, and 
" Professional and Industrial Institutions," Chap. VII. See also, among criminolo- 
gists, Ellero, "Delle origini storiche del diritto di punire," in "Opuscoli criminali" 
(Bologne, 1874); Rolin, "Les phases du droit penal," in the "Revue interna- 
tionelle" 1882, I. For the survival of this primitive state without distinction 
between judiciary organs and functions, see Ou Tsouglieu, " L'organizzazione penale 
della China," S. P. (January, 1889), and "De la responsabilite des autorites locales 
en cas de delits commis par leurs administres," A. C. A. C. (Brussels, 1893), p. 385. 



316 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 217 

§ 217. Penal Lack of Recognition of Morality of Act. 

This constant fact of the coexistence of the military and sacer- 
dotal characters in the organs of the defensive and repressive 
function, among all the primitive peoples, enables us to give the 
positive explanation of a fundamental characteristic which is 
fixed and constant in the primitive administration of society 
and the science of which it is the object. When the defensive 
reaction is exercised in the individual form, it is evident that 
its sole and basic motive lies in personal benefit to the offended 
person and his irresistible tendency towards his own preservation. 
The animus, as a characteristic of moral perversity in the agressor 
or delinquent, is an element that is ignored by the individual 
reaction as foreign to it. This is true not only in the primitive 
and savage stages of humanity, but in every society, however 
advanced it may be. Furthermore, in the beginning of society 
the social reaction itself, whether exercised directly by the col- 
lectivity or indirectly by the chief of the tribe, has no other 
motive or criterion than social utility, the necessity of preserva- 
tion. Even then the malice of the agressor is an element foreign 
to this defensive reaction, an element of which it is ignorant. 1 

' For this, see Steinmetz, " Ethnologische Studien zur ersten Entwickelung 
der Strafe" (Leipsic, 1894), Vol. II, where the "non-international" quality of 
punishment is established. See also Holmes, " The Common Law," Chap. I, " Prim- 
itive Forms of Responsibility," a very interesting book, because it shows the pro- 
found and essential difference between the "juridical feeling" of the Latin and the 
Anglo-Saxon peoples. For while the Latins believe that the general principles of 
law can only be conceived of as the final and degenerate forms of Roman law, 
the Anglo-Saxons, although they, too, have felt its influence, have an entirely 
different juridical sense. An almost daily example of this is the different way of 
looking upon reparation in damages for torts. It is of interest to note that the 
general theories of the positive criminal school follow Anglo-Saxon juridical thought. 
Take, for example, reparation in damages, which the Latins look upon as a social 
function, rather than a private right. It is the same with the theory of responsi- 
bility, born of the natural spirit of vengeance, which the Latins deprive of every 
quality of objective reality and unfit for the necessities of existence. So with the 
theory of defamation; the positive school would punish such an act only when it 
was determined by motives of social interest instead of anti-social motives or per- 
sonal interest, such as hate, cupidity, or vengeance. This distinction of social 
motives is allowed in common law "for the public benefit." The germ of the 
theory of natural crime is contained in the distinction made by Anglo-Saxon crim- 
inal law between common law and statutory crime, "mala in se" and "mala pro- 
bibita." See Holmes, supra, pp. 76, 79, 98. This distinction existed in Roman 
law, whose positive spirit was far different from the metaphysical abstractions of 
the classical criminal school, and closely resembled the doctrines of Anglo-Saxon 
law (a new argument in favor of the similarity of Modern England and Ancient 
Rome) and of the positive school. 



§218] THE PROBLEM OF PENAL JUSTICE 317 

The idea of moral culpability as a condition of punishment is 
first found in the double character, military and sacerdotal, of the 
chief of the tribe, and later in the ministers delegated by him. 
When the priests achieved the ascendancy which they have in 
all primitive societies, they finally appropriated completely the 
repression first of anti-religious and then of anti-social acts. The 
defensive or repressive reaction which when exercised by the 
offended individual had a quality of private vengeance and 
when exercised by society or the chief of the tribe, a quality of 
public vengeance, assumed when exercised by the sacerdotal caste, 
the character of divine vengeance. It ceased to be a purely defen- 
sive function in becoming a religious or moral mission with the 
natural accompaniment of every religion, a strict formalism and 
especially a mystical spirit of penitence and purification. 1 This 
rigid and religious characteristic of the penal function, even when 
it has yielded first in directly political offenses, and then in or- 
dinary offenses to claims of lay and civil ideas and power, never- 
theless leaves in its wake (since dissolution like evolution is 
gradual) the idea that the repressive agency has a function of moral 
betterment or, in the most advanced state, of retributive justice; 
because (as Kroepelin says) the mere change of religious precepts 
into moral precepts does not affect their origin. 2 

§ 218. Evolutionary Phases of Law. 

We may therefore conclude that penalties (and by that word we 
designate the entirety of legal means used by society in the strug- 
gle with crime) have passed through four phases of evolution: 
the primitive (defensive and vindictive reaction, individual, social, 
and instantaneous); the religious (that of divine vengeance); 
the ethical (that of medieval penitence); and the juridical 
(in the sense of the abstract and "a priori" law of the classical 
school). It is readily seen that in science and still more in 
public opinion and in law (which progresses less rapidly), we are 
in the juridical phase, or more accurately, in the ethico-legal 
phase of punishment: since all evolution is produced not abruptly 
but by degrees, and through a series of gradations. 

1 For the religious origin of punishment, see Steinmetz, " Ethnologische Studien 
zur ersten Entwickelung der Strafe," passim. And Mans, "La religion et les 
origines du droit penal," in the "Revue de Thistoire des religions" (1897), Fasc. 
1 and 2. 

2 Kraeplin, "La colpa e la pena," R. F. S. (1883), II, p. 527. 



318 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 219 

§ 219. The Last Evolutionary Phase of Law; the Social Phase. 

The question now is to inaugurate and realize the social phase 
where, thanks to the new data of criminal anthropology and 
statistics of the origin of crime, punishment will no longer be 
retribution for a moral fault by a proportionate chastisement 
(ethico-legal phase) but a sum of preventive and repressive 
social measures, which, more efficaciously and humanely, corres- 
ponding to the nature and origin of crime, will protect society from 
its assaults. 1 The step which we wish taken by the science and 
legislation of penal law, is, therefore, an advance which will com- 
plete the evolutionary cycle by giving to the punitive instrument 
the natural and spontaneous character of a purely social function, 
which it had at the beginning and which, let us not forget, is 
the only one really understood by public sentiment. In this 
connection it may be remarked that the return to primitive forms 
or characteristics may also be considered as a constant sociological 
law in other manifestations of social, economic, and political life. 
Indeed, as Loria observes, primitive humanity owes to the first 
impressions of nature surrounding it, the fundamental lines of 
its existence. With the progress of intelligence and the complica- 
tions which increase according to the laws of evolution, we see 
an analytical development of the principal elements contained in 
the first germs of every institution. This analytical development 
once accomplished, wherein often different elements are in hostility 
in passing from one excess to another, humanity itself, attaining 
a high degree of its evolution, again reunites them in a final syn- 
thesis, which includes its primitive starting point. 2 This return, 

1 It is well known that a great number of the most celebrated criminalists 
through a more positivistic turn of mind have based the right of punishment as 
"social utility," "direct defense," "indirect defense," "self-preservation," "polit- 
ical necessity," and so forth; but the essential difference between these theories and 
that of the positive school consists in the fact that Beccaria, Bentham, Romagnosi, 
Comte, Martin, Schulze, Thiercelin, and Carmignani always had in their system 
the idea of the moral culpability or responsibility of man, as a test and condition 
superior to the idea of social necessity, while we exclude it from the juridical 
and social field, as I will show, post. This is the reason that Geyer, "Grund- 
riss zu Vorlesungen tlber deutsches Strafrecht" (Munich, 1884), p. 19, recognized 
that the new school is more logical than the old utilitarian schools, because it is 
based on the denial of moral fault, which they admit. See also, Morrison, "Crime 
and its Causes"; "Theory of Criminality" (April, 1889). Even with the contem- 
poraneous classical criminalists, although the part played by the idea of social util- 
ity becomes larger, this idea remains, however, is subordinate to the ethical test of 
human culpability. 

2 Loria, "La teorica economica della costituzione politica,'' p. 141; to the same, 



§219] THE PROBLEM OF PENAL JUSTICE 319 

however, is not a pure and simple repetition. It is the comple- 
tion of a cycle that cannot but contain the effects and conquests 
of the long-preceding evolution, and, hence, that is far above, in 
reality and public sentiment, its primitive embryo. As in Goethe's 
famous simile, humanity progresses like a spiral which seems to 
come back on itself, but is always advancing. 1 Thus it is that in 
the economic domain there is to-day a marked trend of property in 
the collectivist direction (even outside of socialism and the limits 
imposed by it on the absolute right: "utendi et abutendi") which 
recalls the primitive forms of collective ownership. A more strik- 
ing illustration is that of women, who in primitive societies are 
forced to labor, but subsequently devote themselves solely to 
domestic cares. To-day they wish, and that rightly, to acquire 
equally with men the right to labor, although naturally remain- 
ing sheltered from the most brutal tasks imposed upon them 
among savages. Again, according to Hartmann, religions in 
primitive times thought that a human being could attain happi- 
ness in his individual life. Then they placed happiness in the 
life beyond the tomb. To-day, however, the tendency is to 
replace it in human life itself, but reserving it for the generations 
to come. So also in politics (according to Spencer) 2 the will 
of all, the sovereign element in primitive humanity, yields little 
by little to the will of an individual; then to that of a small num- 
ber (these are the various aristocracies, of arms, birth, profession, 
and wealth); and finally tends to become sovereign again in the 
triumph of democracy. Hence, in full harmony with this socio- 
logical law, of which other illustrations might be given, we are 
right in demanding that the defensive penal function (often the 
development given in past centuries and in our own of divers 

effect Cognetti, "Le forme primitive nelT evoluzione economica" (Turin, 1891), 
ad fin. And Dramaral, " Transf ormisme et socialisme," in the "Revue Socialiste" 
(February, 1885), § 5, "La loi de regression apparente." This law is dealt with in 
"Divorzio e sociologia," S. P. (1893), No. 16, in "Omicidio," and "Socialismo e 
scienza positiva," pp. 97 et seq., 2d ed. (Palermo, 1900). See also Ferri's reply to 
Garofalo, " Discordie positiviste sul socialismo " (Palermo, 1896), and Appendix to 
the French translation of "Socialismo e scienza positiva" (Paris, 1897), p. 212. 

1 This idea has been sustained by many examples by De la Grasserie, "De la 
forme graphique de revolution," R. I. S. (September, 1895); by Kranz, "La loi de 
la retrospection revolutionnaire' 1 A. I. I. S. (1896), II, 515, and by Zerboglio, "Le 
retour au passe" in the "Devenir social" (September, 1896). De Oreef, in "Trans- 
formisme social," p. 473, raised several objections, but this, it seems to me, was 
because he took it in the sense of a return, pure and simple, and not of an apparent 
one accompanied by essential progress. See also Demoor, Massart, and Vander- 
velte, "L'evolution regressive" (Paris, 1897). 2 Spencer, Sociology III, Chap. V. 



320 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 220 

component elements and the predominant ethical criterion of cul- 
pability) should return to its starting point and again become a 
social function inspired, not by alien and inaccessible criteria, but 
by the actual needs of human society, guided by positivist no- 
tions of the genesis of delinquency. 

§ 220. Development of Penal Law Toward the Defensive. 

There remains one indestructible effect of the slowly ascending 
evolution through which this function has passed in ceaselessly 
progressing and advancing as it became farther removed from 
its starting point. It has been divested of all spirit of brutal 
vengeance to assume the character of a defense pure and simple, 
imposed by the necessities of social conservation. Perhaps we 
shall see the continued existence for some time to come of the 
sentiment of hatred for the evildoer which has so much value 
in Tarde's eyes 1 as a repellant and preventive moral force. While 
it has a value in the present phase of transitory morals, still it is 
but one of the numberless psychological factors interwoven in 
the origin of crime and this author therefore exaggerates its effi- 
cacy. It will continue to grow less until it disappears, as has 
happened in the case of a similar feeling with regard to the insane. 
It is not more than a hundred years since madmen were detested 
and punished, because their insanity was attributed to their will. 
So, to-day, criminals are detested because the tendency to crime 
is attributed to moral fault and free choice. Even if a feeling of 
repugnance is retained for them as for other diseased persons, 

1 Tarde, "Penal Philosophy" (Boston, 1912). The author believed that he 
was interpreting my thought at the Congress of Criminal Anthropology at Ge- 
neva by saying that I foretold the disappearance of hate of criminals, as that of 
the insane, through the effects of time and evolution. "Revue penitentiaire" (De- 
cember, 1896), p. 1242. Already, as Gauckler said in"De la peine et de la f onction 
du droit penal au point de vue sociologique," in the "Archives" (September, 1893), 
p. 46, there is a constant tendency in the increase of pity and hence in the attenua- 
tion of punishment, so that as Orchanski said in "Les criminels russes," A. P. 
(1878), XIX, p. 1, "instinctive hate of the delinquent is a feeling of inferior man." 
But furthermore, it is clear that the reason of my thought lies in the scientific proof 
that we must consider crime (especially in its atavic forms) as one of the forms of 
human pathology, and not as the effect of an evil will; and this is what happened 
in the case of insanity. And, hence, if it is true, as Tarde says, that humanity hates 
or does not hate actions depending upon the quality of the determinant will, it 
is evident that when crime is recognized as undetermined by evil will, the reason 
for hating it will disappear. To this effect, see Jelsgerma, " Les caract&res du cri- 
minel ne sont d'origine pathologique," in "Actes du Congres" (Brussels, 1898) 
p. 34; Cobade, "De la responsabihte criminelle," p. 37; Vorgha, "Die Abschaffung 
der Stretknechtschaft," 2 vols. 



§221] THE PROBLEM OF PENAL JUSTICE 321 

hatred at least is inexcusable. It may be said in summary that 
the study of this natural evolution, wherein from the embryonic 
fact of a reaction of irritability and animal sensibility we reach 
the high and complicated entirety of customs, institutions, and 
laws, constituting the modern puntive agency, we are led to a 
conclusion made up of the two parts of the same fundamental 
principle. 

§ 221. Penal Function Defensive and Unconnected with Conditions of 
Moral Liberty. 

The first, already more or less recognized by some criminolo- 
gists and practically admitted by public opinion based on the real 
observation of everyday facts, consists in the recognition of the 
punitive agency as a function, purely defensive or preservative, 
of society. 1 The second, which is novel as an explicit affirmation 
and on that account at first warmly contested but now accepted 
as a premise by the eclectics (without the courage to draw from it 
logically the radical consequences which it involves), consists in 
the independence of this function with respect to any condition 
of moral liberty or moral culpability in the delinquent. By this 
second part, we really penetrate with criminal sociology to the 
quick of the fundamental problem of human responsibility. 

1 Certainly, this function of defense or protection from crime either individual 
or social cannot be independent of all rules and conditions, as I will show, answer- 
ing the criminalists, who constantly reproach us by an accusation as easy as ill- 
founded, of sacrificing the protection of the accused delinquent to the tyrannical 
authority of a "wretched social interest." 



CHAPTER III 

OBJECTIONS TO NEGATION OP FREE WILL 

The penalty (after the fact) is not a defense (before the fact). Social defense is 
not legal defense. Positive origin of law in its individual and social 
aspect. Social defense and class defense in penal law. Atavic and evo- 
lutionary criminality. 

§ 222. Objections to Theory of Defensive Penal Justice. 

It is well, however, to dispose forthwith of some of the objec- 
tions, tirelessly directed by even the more recent classical crimi- 
nologists and by some eclectics, to the principle of social defense 
and preservation considered as the absolute justification of the 
penal function without any admixture of other principles to 
complete and regulate it. These principles are wrongly called 
"higher principles" (of separative or distributive justice) since 
it is clear that humanly speaking there is nothing "higher" than 
the necessities of human life, either individual or social. It is 
time to abandon forever the superannuated distinctions between 
the useful (called arbitrary, vulgar, and variable), and the just 
(absolute, noble, eternal); since both are fundamentally the 
same thing. What is just is only the useful responding definitely 
to the natural conditions of human existence at a given time and 
place and, therefore, distinct from the immediate and transitory 
utility which does not conform to these same conditions and 
which alone merits these low qualifications and which the posi- 
tivists never concede as a rule of life. 1 The objections are as 
follows: (a) The right of punishment cannot be likened to the 
right of defense, since defense looks to a future fact and punish- 
ment regards an accomplished fact, (b) The reason of defense 
or social preservation considered as the sole principle of the right 
of punishment is a step backward, when compared with the 
reason of tutelage or judicial defense advocated by the contem- 

1 Among the most recent eclectics, Saleilles, "Individualization of Punish- 
ment" (Little, Brown & Co., 1911) wrote (p. 4), "The distinctive purpose of 
criminal law would thus become the economics of social defense; but this for- 
mula of the Italian school should be amended by adding: are economics of 
social defense adapted to the demands of the sense of justice ? " 

322 



§223] OBJECTIONS TO NEGATION OF FREE WILL 323 

porary Italian classical school, especially when it is considered 
that social defense can legitimate any excess of power on the part 
of the State to the detriment of individual rights, whereas defense 
by law excludes this possibility. 1 (c) At all events it is not social 
defense which is the base and soul of penal justice, but rather the 
defense of the dominant class. 

§223. (A) Objections to Theory of Defensive Penal Justice: Reparation 

not Defense. 

When society, in the capacity of a person, as a living collective 
body repels the attack of an invading enemy we have the case of 
personal defense directly exercised just as an individual repels 
a robber on the highway: strictly speaking the right of punish- 
ment is not here involved, but the case is one of defensive war. 
This is also what occurs when the agents of public authority 
repel in the name of society a direct aggression against one or more 
individuals: there again it is society that exercises by delegation 
its personal defense and defends itself in the individual attacked. 
Hence, when society represses or, using classical language, pun- 
ishes the wrongdoer for a misdeed already committed, it is not 
defensive in the strict sense of the word but preservative, since 
"the right of defense (as Romagnosi has already noted) is but a 
transformation of the right of conservation," and hence is its 
equivalent, since defending oneself means precisely to obey and 
foresee the necessity of self-preservation. 2 The natural evolu- 
tion of punishment proves by facts that penal justice should have 
no other function than that of the defense or preservation of the 
conditions of social existence (individual or collective). It is error 
for the majority of criminologists to compare real defense properly 
so-called with social repression; it should be compared with the 
vindictive reaction of the primitive individual against offenses 
already suffered. 

Criminologists call this primitive instinct of vengeance "provi- 
dential," and many representatives of the Public Ministry still 
speak of the social vindication, thus making unconscious allusion 
to the first origin of the right of punishment, 3 just as many other 
common expressions remotely recall, as Bagehot says, "the spirit 

1 Carrara, " Programma," §§611, 815. Parte speciale, Intro., Col. 1, p. 27, 
"Opuscoli," I, 261, II, 12. And to the same effect, the criminalists of the classical 
school. 

2 Romagnosi, "Genesi del diritto penale," § 49. 

3 Pagano, "Principi del codice penale," §1; Carrara, "Programma," §587. 



324 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 223 

of warfare which still permeates our morals." 1 Hence, Stephen 
rightly declared that "the relation of criminal law to vengeance is 
quite analogous to that which exists between marriage and sex 
instinct." 2 The individual or collective reaction against crimi- 
nal acts, which offend against the conditions of the existence of 
an individual or of the collectivity, is nothing but defensive 
vengeance. When Ellero writes that "punishment contemplates 
future offenders and not the one (and I would say at the same 
time, with the one) that it strikes," he confirms the old adage, 
"punitur non quia peccatum, sed ne peccetur." 3 Certainly 
social defense is not the same as personal vengeance since the 
latter is the first phase of an evolution terminating in the latter. 
It is an individual and transitory act which becomes a collective 
and permanent function answering a permanent and collective 
need. Wherefore Romagnosi said: "The penal function is neither 
individual nor temporary: it is universal and perpetual for an 
entire society." 4 Moreover, the very formula "evil for evil," — 
which, according to Kant, Moniani, Rossi, Guizot, de Broglie, and 
others, is the highest expression of absolute moral justice and 
the only basis of the right to punish, — is but a quintessence of 
primitive vengeance and talion. The acceptance of the law of 
talion was a great advance, but it has been left behind in moral 
evolution. "Ideal and absolute morals" may indeed counsel "one 
struck upon the right cheek to turn the left"; but the instincts 
of preservation, defense and personal vengeance impose, on the 
contrary, a reaction of which "an eye for an eye, a tooth for a 
tooth" was the first expression of what finally took more general 
and less material form in the equivalent formula of evil for evil. 
To this gratuitous and hence, really less moral affirmation, we op- 
pose the necessity for defensive reaction imposed on every living 
being by the instinct of self-preservation. Certainly the indi- 
vidual could not invoke the plea of self-defense if he killed a man 
under pretext that he or some one else might attack him at a 
more or less distant future time; and for the very reason that 
in real life an individual is not exposed every day to attack. It 
is, therefore, natural that he should wait before defending him- 
self until the attack actually occurs. And in waiting he may take 

1 Bagehot, "Scientific Law of the Development of Nations." 

2 Stephen, "General View of the Criminal Law of England" (London, 1863), 
p. 99. 

3 Ellero, "Opuscoli criminale," 132. 

* Romagnosi, "Genesi del diritto penale," § 337. 



§224] OBJECTIONS TO NEGATION OF FREE WILL 325 

only indirect preventive precautions as appropriate and effective 
for the individual and society. Society, on the contrary, as a col- 
lective and permanent organism, sustains every day and hour 
in some part or other of its entirety continual criminal aggressions 
uninterrupted in the form of murders, robberies, forgeries, rapes, 
and arsons. 1 It may be said without exaggeration, there- 
fore, that for society aggression is always existent and imminent 
and that it really has this fundamental condition in legitimate 
defense of its repressive acts, so that it exercises, in this respect 
let us again repeat, only a preservative function inherent in 
every social organism. 

§ 224. (B) Objections to Theory of Defensive Penal Justice: Social 

Protection. 

So be it, the classical criminologists reply; but do you not see 
that in speaking of a social defense more or less impregnated with 
a spirit of vengeance, you expose individuals to every kind of 
vexation on the part of society, which in the name of alleged 
social necessities or utilities exaggerates repression and establishes 
by the destruction of individual human rights the famous order 
which "reigned at Warsaw"? On the contrary, they say, we 
speak of juridical defense or protection and interpose the law's 
supreme and absolute limit as a solid barrier to all excesses of 
society against individuals. I fancy that it is unnecessary to 
call attention to the fact that this generous anxiety of the classi- 
cal criminologists is due to the individualistic current peculiar 
to the nineteenth century, which, reaching the point of ex- 
aggeration, continues to see in modern society what the State 
of the Middle Ages was; namely, the enemy of the individual. 
This apprehension will more and more diminish with the modern 
equilibrium, which positive sociology proposes to establish be- 
tween the individual and society, considered as the inseparable 
and strictly solidary terms of human life. I deem it useless to 
recall with emphasis the very accurate idea of Livingston saying 
in his preface to the project for a penal code for Louisiana: 
" General utility is so intimately connected with justice that they 
are inseparable in criminal jurisprudence," or, to put it dif- 

1 This disappeared with the equivocation upon which it was founded, the con- 
stant objection, "that there can be no self-defense against assault to come, but only 
in case of actual aggression." Prod, " Determinisme et penalite," A. P. (July 1, 
1890), p. 379. Many others had said it before him, among them Ortolan, "Ele- 
ments de droit penal," I, § 180. 



326 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 224 

ferently, they are one and the same thing. It seems more useful to 
discuss here an idea elsewhere expressed. It has been accepted 
by Puglia and the other adepts of the positivist school, thus 
confirming an observation made by Carrara and repeated by 
Cisotti: namely, that frequently formulas "dissimilar in terms 
are found to be one at the root." x Indeed, I believe that the 
formula — "necessity of legal defense" — is really in accord with 
the facts and supplies the only positive justification of the right 
to punish; but I also believe that the formula — "necessity of 
social defense or conservation" — is not only the equivalent of 
the first but is more exact. The expression "defense by law" 
conceals an error in that it does not distinguish with precision 
rational law, the entirety of principles elaborated by thinkers 
and jurists, — and positive law, which is the social precept, the 
expression of the will of the legal majority and of general needs. 
Now, if the words "defense by law" mean that society should 
strive by punishment to preserve an order, abstract and 
rationalistic, then it is not the same thing as "social defense," 
which contemplates the concrete conditions of social existence. 
Still it is easy to remark that such is not the real reason of 
the punitive agency: since, while society, in formulating its laws, 
is bound to follow the injunctions of reason and science; never- 
theless, when it has once realized in concrete form a given legal 
command, it can only assure the preservation of that order as it 
actually exists without regard to its conformity with scientific 
principles. As the idea of law is not absolute, eternal, and im- 
mutable, 2 but varies with time and place and even with the 
person, it is evident that the sole starting point for the scientific 
study of a social function can be found only in positive law as 
it exists in a given society. Consequently, if it be said that that 
which gives to society the right to punish is the necessity of 
the legal system, this can signify but one thing, to wit; that 
society punishes in order to preserve the legal system existing 

1 Cisotti, "II diritto penale," in "Rivista penale" (1876), p. 283. And yet the 
contemporaneous Italian classical school, after exhaustingly analyzing crime as 
an abstract entity, has spent much time and ingenuity in discussing whether the 
right of punishment is "juridical guardianship" (Carrara), "juridical preserva- 
tion" (Tolomei), or "juridical reintegration" (Pessina). This Chinese puzzle 
reached its limit in the Hegelian formula: "Crime is not law" but "Punishment 
is not crime," therefore, "Punishment is law" because "the negation of a negation 
is a reaffirmation." 

2 Spencer, "Basis of Morality." Hennebicg, "Lecon d'ouverture au cours de 
droit naturel" (Brussels, 1896). 



§ 224] OBJECTIONS TO NEGATION OF FREE WILL 327 

at a given historical moment. But it is then also readily seen that 
maintenance of the legal system is the exact equivalent of mainte- 
nance of society, because society and law are correlative and inter- 
changeable terms. Whoever says law says society, for no law exists 
without society as no society exists without law. Law, as Ardigo 
has expressed it (in a singularly happy phrase which has been 
quoted thousands of times since I first gave it circulation among 
jurists), law is the specific force of the social organism, as affinity 
is the specific force of chemical substances, life that of organic 
substances, and psychiatry that of animal substances. 1 As there 
is no chemical substance without affinity, organism without life, 
animal without psychiatry, in like manner there can be no society 
without law. If a man were alone upon the earth he would 
encounter no restraint upon his activity. He would meet with 
obstacles in other animals or in natural forces; but there could 
not be, and there is not, any juridical rule of conduct between 
the man and things or other beings because there would be 
absolute heterogeneity, whether of natural order or animal species. 
Law is possible only to man, not because he alone is endowed 
with reason and free will, as asserted by jurists faithful to the 
traditional philosophy, but only because the species, the race, is 
the great criterion of social affinity which only between man and 
man can have a real social, and hence, a legal relation. The soul 
of law is equality, not only in the moral or ideal sense but also 
in the physical or organic sense. Indeed, if a civilized man meets 
a savage of the lowest development, there can be no common rule 
of law; the enormous organic and psychic difference separating 
their two races prevents any reciprocal accord on the limits 
imposed on their coexistence. 2 The inferior races, as Lubbock 
said, have no idea of law, howsoever familiar and fixed the idea 
of the law and command of the chief of the tribe may be among 
them. 3 It is only among men not too dissimilar in race or 
psychic constitution that a constant rule of conduct can be estab- 

1 Ardigo, "La morale dei positivisti," p. 550; Bardier, "La vie des Societes," 
p. 25, says with less accuracy, "the social environment is governed by sociability 
as the chemical environment is governed by affinity." 

2 This observation on even physical equality or similarity as the condition of 
juridical relations has been reproduced later by Tarde in his eclectic theory of 
responsibility founded on personal identity and social resemblance. Giddings, "The 
Principles of Sociology" (New York, 1896), believes that the specific character- 
istic and elementary tie of society are nothing but a "feeling of race." 

3 Lubbock, "Origin of Civilization and the Primitive Condition of Man." 



328 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 224 

lished which will follow in its development and perfection the 
successive degrees of human and social evolution. Indeed, not 
to mention the animal societies, even among savages certain rules 
of collective life are imposed by the primitive conditions of exist- 
ence and present in embryo the social and legal order that after- 
wards spreads and become complicated with the development of 
civilization. We see it passing from a simple and violent resist- 
ance by brute force to a rational equilibrium of legal rights. 

Hence, from the moment that two men confront each other 
their external activity encounters limits in their mere coexistence : 
the same tool cannot be used by both at the same time: the same 
food cannot be eaten by both. 1 If to these two men we add a 
third, a fourth, and so on, up from the savage tribe to the modern 
State, their relations and, hence, the limits of their individual ac- 
tivities, will increasingly multiply and interlace, and the juridical 
order will become endlessly complicated. It, too, follows the uni- 
versal law of evolution by a passage from the simple to the complex. 
But whatever may be the degree of development of the abstract 
idea of law and the concrete juridical order, the incontestable fact 
remains that there is no human association possible without a 
juridical order and without limits to the activity of its members. 
The experimental and only possible conception of law is the neces- 
sary limitation of coexistent activities. Stuart Mill said exactly: 
"A right is a liberty limited by another liberty," and Stein repeats 
that the law "is, abstractly speaking, the limit between persons at 
every particular moment of their actual life." 2 Dante already 
defined law as " hominis ad hominem realis ac personalis proportio " ; 
while Kant spoke of "an universal coercion that protects the 
liberty of all." 3 Spencer said, "Rights are a relation of man to 
man, outside of which the correspondence between internal and 
external acts, whence life results, is impossible"; and more re- 
cently, justice is "the liberty of each limited only by the equal 
liberty of others." 4 

As may readily be seen, from this negative conception of 

1 Spencer, "Justice" (London, 1891), begins his list of human rights with "right 
to physical safety" (Chap. XI) and "to the usage of natural means" (Chap. XI). 

2 Stein, "Die Volkwirthschaftslehre," 2d ed. (Vienna, 1878). 

3 Cited by Carle, "La vita del diritto nei suoi rapporti colla vita sociale," 
p. 307, and 2d ed. (1891). 

4 Spencer, "Justice," p. 46 and Ap. A, where he declares that he did not know 
Kant's definition similar to his own. But Spencer did not recall Stuart Mill's 
definition of law more similar still. 



§224] OBJECTIONS TO NEGATION OF FREE WILL 329 

law as a limitation imposed by the necessities of the associa- 
tion of individual existences, springs the correlative and in- 
separable term, its positivistic conception as the faculty to do 
and exact everything that does not exceed on our part the 
border line which is marked by the coexistence of the 
others and which serves to restrain others within the same limit 
with respect to us. 1 Hence it follows that law and duty, instead 
of being related to each other in an order of precedence and 
preeminence as the moralists and philosophers of the law have 
dreamed, are contemporaneous and inseparable like the front 
and back of the same surface, because they are determined by the 
inevitable necessities of human coexistence. 2 Law, besides its 
individual aspect of exterior and mutual limitation among coexist- 
ent human activities and of the consequent faculty of acting and 
exacting up to this limit, should also be considered in its social 
aspect, which is also double. That is to say, that, inasmuch as 
the coexistence of two or more men makes a series of negative 
limitations and positive faculties in their external activity neces- 
sary, it is evident that law cannot be conceived of except as a 
necessary product and a specific force or internal protective 
function of every social organism. 

As in the case of animals, the psyche has its origin and func- 
tion in the protection of their existence, since, to illustrate, 
the idiot abandoned to himself perishes from his absolute 
psychic insufficiency to procure and assure the conditions 
necessary for existence. 3 So, also, law has its origin and 
function in the protection of society, which could not exist 
if, among the component individuals, in their relations with each 
other and with the collectivity, the sum of negative rules (limits) 
and positive rules (faculties) that make up the law was lacking. 
Hence it is that Ardigo's phrase: "Law is the specific force of 
the social organism," should be supplemented by that of Ihering: 
"Law is the guarantee of the conditions of existence of society." 4 
Hence, too, it is, that law, both as an idea (in philosophical theories 

1 What Sticker (Vienna, 1884) calls the "Physiology of Law" consists in this: 
It is formed by the realization of the power to act, a feeling which man owes to the 
power of will over his muscles, and to experience, which teaches him that other men 
nave the same power and hence the same faculty. 

2 Cf. Kowalevski, "Les origines du devoir," R. I. S. (February, 1894). 

3 Sergi, "Origine e significazione biologica dei fenomeni psichici" (Milan, 
1885). 

4 Ihering, "Der Zweck im Recht," 2d ed. (Leipsic, 1884). 



330 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 225 

and in public opinion) and as a fact (in statutes and customs) 
is neither absolute, eternal, nor immutable. Like language, art, 
economics, religion and morals, it is a special product which 
varies with time and place according to the physiological apti- 
tudes of each ethnic group and the conditions of the environment 
wherein life unfolds. Hence (be it said parenthetically), whereas 
this positivistic and relative way of considering law has seemed to 
traditional philosophy to be a real shock tending to suppress every 
guarantee against the arbitrary action of the State by suppressing 
the solid preexisting and higher authority of an eternal archtype 
of law (and this is why the classical jurists write Law with a capi- 
tal L as the Platonists wrote Idea with a capital I), it is on the 
contrary the only way, both scientifically and in fertility of results, 
of strengthening the legal conscience of individuals and nations 
in view of the "struggle for law," wherein Ihering rightly saw 
the first duty of every civilized man. 1 If law is not immutable, 
but like every other natural and social phenomenon follows the 
law of evolution, it is evident that just as it differs to-day from 
the law of the past, so will it in the future be other and better than 
it now is, because it will be always more humane. Humanity 
should tirelessly struggle for the development and perfection of 
law instead of becoming mummified in the formulae of theorists 
or the codes of legislators. 

§ 225. Same Subject : Conditions of Existence. 

The other social aspect of law consists in the legal sanction 
necessarily contained in it which is the only positive criterion (a 
subject much discussed) of the rules of morality. In every social 
organism, the natural conditions of existence fix the rules of 
conduct which tend in part to make the coexistence of the asso- 
ciated individuals possible and satisfactory, and in part to defend 
the interests of the dominant class. Therefore, it may be said of 
law viewed under this social aspect that its function is to main- 
tain simultaneously social solidarity, and to provoke inequal- 
ity. Each of these rules of conduct, as we shall presently see, 
has its own coercive sanction; that is to say, they determine a 
corresponding act of society against any individual who infringes 
them. It is only when a rule of conduct has a considerable impor- 
tance for the existence of society or a class, that it is accompanied 
1 Ihering, "Der Zweck im Recht." 



§225] OBJECTIONS TO NEGATION OF FREE WILL 331 

by a coercive sanction, and thus becomes a rule of law and ceases 
to be a rule of convenience or morals. Hence, every infraction 
of the rules of law induces a sanction, not . merely the reaction 
of public opinion but the reaction of the State placing its power 
at the service of a given law, emanating from social authority. 
The word justice, in its positive sense, expresses the sum and the 
general idea of those social sanctions which, at every time and 
place, whether by custom or law, but always with a coercive 
authority, fix and protect the rules of law determined by the 
special conditions of social existence. A constant law, however, 
rules the cycle traversed, from birth to decline, by every law 
that looks to the defense of a class rather than to that of the 
collectivity. This law is that at first the needs of existence 
(individual and social) determine corresponding interests (in the 
individual or in the collectivity) and the latter lead to a struggle 
to transform them into rights by assuring them a coercive sanc- 
tion. Then rights by reason of inevitable abuses and changes 
of economic and, hence, social conditions, degenerate into privi- 
leges; and the latter, with more or less obstinacy and during more 
or less time, but ultimately in vain, oppose the further social evo- 
lution produced by the conquest of new rights corresponding to 
new needs and interests brought about by the change of social 
conditions. 1 Direct experience of these legal sanctions after- 
wards transmitted by heredity gives origin to and develops a 
"legal conscience " in each individual, just as the experience of the 
sanctions of public opinion and religion gives birth and develop- 
ment to a "moral conscience," which to speak more exactly 
should be called "social sense." 2 It is therefore from the theo- 

1 The historical struggle of the middle class ("Tiers fitat") against the domi- 
nant classes of nobles and clergy, determined by new needs and interests conse- 
quent upon the birth of manufacturing industries and the discovery of America, 
then to-day the struggle of the proletariat for its rights, that is to say, for the 
human right of all members of society, a struggle determined by the new needs 
and interests consequent upon great capitalistic industries of the middle-class 
regime, are manifest examples of this change, at first evolutive, then unevolutive, 
of needs into interests, rights, and privileges. 

2 D'Aguanno, "Genesi ed evoluzione del diritto civile'' (Turin, 1890), pp. 99 
el seq., holds correctly that the juridical conscience is born spontaneously in a 
people as a sentiment accompanying the reciprocal limitation of coexisting actions. 
But I believe him wrong in not believing, in accordance with the English view 
(Stuart Mill, "Utilitarianism," Chap. V; Bain, "The Emotions and the Will," P. I., 
Chap. XV; Spencer, "Principles of Psychology," pp. 152-155) that juridical sanc- 
tion is derived from the affirmation of legal regulations by the social power; for 
this is an undeniable element in the growth of the "consciousness of law." In this 
way alone, can the growing predominance of the psychological element over and 



332 POSITIVE THEORY OF PENAL RESPONSIBIITY [§225 

retical and systematic study of the negative and positive norms 
of human activity under individual and social aspects that the 
science of law originates and grows. It is metaphysical or posi- 
tivistic, depending upon whether it starts with ideal abstractions 
or observation of facts. And it follows the phases of general 
philosophy, since, while the latter studies the whole man, the 
former studies an important part, namely, his social, external, 
juridical life. In whatsoever way this part of human existence 
be considered, whether under the individual aspect — as an inevi- 
table limit between two or more coexistent activities and as a 
corresponding and necessary faculty of doing and exacting every- 
thing that lies within this limit — or under the social aspect — as 
the specific force of every social organism and as a corresponding 
and necessary collective sanction — at all events it remains estab- 
lished that society and law are convertible and correlative terms. 
Hence it is exactly the same whether we say legal prohibition or 
social prohibition, only that the formula which speaks of social 
prohibition is more accurate since it excludes a possible equivo- 
cation with the abstract and absolute law which has nothing 
in common with the punitive agency considered in its practical 
exercise as a daily social function. 

At first, punishment was to avenge offenses; then it was to 
appease the outraged divinity and to reestablish the authority of 
the prince injured by the offense; then it was believed that the 
justification of the right to punish lay in a more or less absolute 
justice or the obligation to correct the criminal, and a moral 
sacerdotal character was attributed to it; finally, it was considered 
that its real principle was the necessity of maintaining the legal 
or social system. 

above the physical element of coercion be explained. See Neukamp, " Das Zwangs- 
momentim Recht," in the "Jahrbuch des Internationalen Vereins vergleiehender 
Bechtswissenschaft" (1889), IV, fasc. I. In the eyes of metaphysical philosophy, 
on the contrary, man is born with a congenital moral sense, thanks to which, prior 
to and independent of all social experience, he knows what is just and what is un- 
just according to the eternal and absolute rules of moral law. This statement is 
partially true. Every man has an hereditary predisposition to feel and conceive of 
the rules of morals and law, through the experience of past generations, which 
facilitate his being taught from infancy. But the hypothetical existence of abso- 
lute and eternal norms of morals and law must be looked upon as chimerical and 
untrue. Science renounced them forever after Locke's triumphant criticism of 
innate ideas. As Pascal said, a meridian is enough to reverse all rules of justice. 
Patricide is the most horrible injustice in Europe, while in Sumatra it is a sacred 
duty. See for a criticism of innatism Laviosa, " La filosofia scientifica del diritto in 
Inghilterra" (Turin, 1897), V. I, pp. 313 et seq. 



§ 226] OBJECTIONS TO NEGATION OF FREE WILL 333 

In any event, whatever be the reasons and the purpose in- 
voked by thinkers, society has always exercised the penal or 
repressive agency: and that signifies that it is an essential con- 
dition of the existence of society. 1 It is, after all, only an 
effect of the universal law of conservation. It is, consequently, 
a function, which, gradually eliminating the spirit of vengeance, 
penance, and retributive justice, should now be reduced to its 
real character of a preservative clinic against the disease of 
criminality. 

§226. (C) Objections to Theory of Defensive Law: Influence of the 
Dominant Class. 

The last objection to the idea that the maintenance of society 
is the reason for the penal function is as follows: It is asserted 
that the office of penal laws has not hitherto been to defend society, 
that is to say, all the groups that compose it, but to protect 
peculiarly the interests of those in whose favor the political 
power is constituted, namely, the minority. 2 In this connec- 
tion I have always said that "defense of society" is equivalent 
to the defense of the concrete juridical order. While it is 
undeniable that in this concrete order, at each historical epoch 
the interests of the dominant classes prevail, it is also indis- 
putable that civilization evolves in the direction of gradually 
effacing and attenuating in social law the most clean-cut 
inequalities between the dominant and the subject classes. 
There was first a struggle, and a victorious struggle, to 
abolish civil inequality (masters and slaves), then religious 

1 Carrara, "Programma," §612, wrote, "It is not society which gives rise to 
the right to punish, but the necessity of punishing the violators of rights, which 
makes civil society." Without considering this as a return to the theory of social 
contract, it is strange to imagine (I), "that law existed before civil society," for if 
there were no society, where and how would law be clothed? In "mente Dei," 
perhaps, but not among men. (II), That civil society was formed to punish wrong- 
doers. Civil society was formed in the first place, because man, like every other 
animal, cannot live in isolation; but besides, for other reasons and objects more 
noble and fertile than that of punishing wrongdoers, as if it were only "a mental 
insurance company against crime." This confirmed me in my opinion that if Car- 
rara was a theoretical and practical anatomist of crime, as juridical entities, he 
was not as great a jurist, psychologist, and sociologist. 

2 Vacearo, "Genesi e funzione delle leggi penali," p. 101; Loria, "I basi eco- 
nomiche della costituzione sociale"; Stein, "Die Gesellschaftslehre," pp. 56-73; 
"Gegenwart und Zukunft der Rechts- und Staatswissenschaft," II, 4, III; Ihering, 
"Der Zweck hn Recht," Chap. 8, § 2; Gumplovncz, "Grundriss der Sociologie" 
(Vienna, 1885), pp. 189 et seq., where he said, "the true principle, the life of all 
law, is inequality." 



334 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 227 

inequality (orthodox and heretic), then political inequality 
(struggle of the third estate, or bourgeoisie, against the aris- 
tocracy and clergy), and now there is the struggle to abolish 
economic inequality (proletariat and bourgeoisie) as I have 
elsewhere very fully explained. 1 Therefore, this objection has 
nothing conclusive against the solution given by the positive 
school for the problem of responsibility and penal justice. While 
this objection has no value to impair the scope and basis of our 
theory that the defense and preservation of society is the sole 
positive reason for penal justice, it serves, however, to make 
precise its limit and tendencies when one combines the idea of 
defense of society with the idea of defense of class, as I have 
recently done. 

§ 227. Scientific Socialism. 

When the positivists, having insisted from the beginning, as 
was necessary, on the constitution and importance of the anthro- 
pological factor in the natural genesis of crime, had turned their 
attention to the social influences which act upon criminality and 
their relations with penal justice, 2 there happened in Italy and 
in other countries, politico -social events (anarchistic attempts, 
the Panama scandals and their relative impunity, popular move- 
ments in Sicily and Lunigiane and their repression by martial 
law and military tribunals, occurrences repeated in 1898) which 
placed the most secret ravages of the penal mechanism under 
a magnifying glass. 3 Then it was that, having devoted myself 
after the third Italian edition of the present work (1892) to 
the study of the Marxian theory as a sociological doctrine, on the 
one hand, I reached the conclusion that scientific socialism is the 
logical and inevitable conclusion of sociology, which otherwise 
must remain sterile and impotent. 4 On the other hand, I came 
to distinguish in criminality two great categories of facts dif- 

1 Ferri, "Socialismo e scienza positiva," 2d ed. (Palermo, 1900). 

2 This is what I have always done from the beginning, with the classification 
of anthropological, physical, and social factors of criminality, and then with the 
bio-sociological classification of criminals. 

3 In sociology, there are always illuminating facts, which lay bare the faults 
and spirit of institutions. Thus the Dreyfus trial illuminated, like a searchlight, 
the faults and spirit of military justice (the slave of militarism, the ally of clerical- 
ism) in opposition to civil justice as shown by the same case in the Court of Cas- 
sation. The abuses and judicial errors of military justice were and are a daily 
phenomenon, but the outcry caused by the Dreyfus case was necessary to obtain 
evidence. 

4 Ferri, "Socialismo e scienza positiva." 



§228] OBJECTIONS TO NEGATION OF FREE WILL 335 

ferent in their character, motives, and consequences, and to 
distinguish two motives in the penal function more or less in an- 
tagonism, and one or the other more or less dominant according 
to the different forms of criminality to be repressed. 1 

§ 228. Two Forms of Criminality. 

There exists an atavistic and an evolutive criminality. The 
first is the common criminality such as is shown in the muscular 
and atavistic form, strictly speaking, or the spurious form, a form 
modern and modified by evolution. The second is the politico- 
social criminality which, under one or the other of the two 
forms, tends (in a more or less illusory way) to hasten the future 
phases of politico-social life. 2 Thus the distinction between ata- 
vistic and evolutive criminality, which has above all a psycho- 
logico-social base (in the sense of its determinant motives), is more 
complicated in real life, either in form of execution which may be 
atavistic in evolutive criminality and vice versa, or in the anthro- 
pological category of the criminals. Indeed, criminality in the most 
characteristic form (muscular) will be found generally among born, 
habitual, or insane criminals : and when it is present in occasional 
criminals or criminals by passion, it will, as a rule, take on the 
less serious forms of violence and fraud. And with greater cer- 
tainty, evolutive criminality will be, for the most part, the work 
of pseudo-criminals, or normal men (for the forms of pure politico- 
social heterodoxy), or of criminals by passion (through fanaticism 
like Orsini and Caserio), or of occasional (chance) criminals (especi- 
ally in collective crimes and crimes of mobs); although it, too, 
may by way of exception be the work of born-criminals (as for 
example, Ravachol), or of insane criminals (Passanante) . 3 

1 Ferri, " Delinquents ed onesti," S. P. (June, 1896); "Temperamento e crimi- 
nalita" (a report to the criminal anthropological congress at Geneva), A. C. A. C. 
(Geneva, 1897), p. 86, and in the "Scuola positiva" (August, 1896); "La justice 
penale," resume of the course in criminal sociology at Brussels (1898). On this 
resume, see Cruppi, "Les idees de M. E. Ferri sur la justice penale," in the "Revue 
bleue" (3 December, 1898); Richard, in the "Annee sociologique" (Paris, 1898), 
I, p. 455 (1899), II, p. 413; in the "Revue philosophique" (December, 1898); 
DeQuiros, in the "Rivista generale di legislacione y jurisprudenza " (January, 1899). 

2 The terms atavic and evolutive criminality are not used in the sense of violent 
and material and fraudulent and intellectual given them by Sighele and Ferrero, 
who were the first to use them. 

3 From this point of view, brigandage is one of the most characteristic phe- 
nomena. It can be evolutive (with motives either political or of social protesta- 
tion as in the case of Karl Moor, described in "Die RSuber," by Schiller) or atavic 
(determined by vengeance, ferocity, or cupidity). It may take light forms of vio- 



336 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 229 

The practical problems of the measures to be taken against 
the authors of a given crime can only be solved by the simulta- 
neous application of various bio-social criteria, as we shall see 
later, that is to say, criteria of the conditions of the act, the 
agent, and society, according to the right invaded, and determin- 
ing motives, and the anthropological category of the criminal. 

§ 229. Distinction Between Two Forms of Criminality. 

In the meantime, in regard to the present question, the conclu- 
sion is that in all these criminal phenomena there is always a ma- 
terial menace or an effective violation of the actual conditions of 
existence of the individual (in his bio-personality) or of society (in 
its concrete historical composition). But that which essentially 
separates the former from the latter, aside from the different mor- 
phology of violence or of fraud, is in the motives controlling the 
author of the deed, whether of selfish and anti-social interests or of 
altruistic and social interest, whence it follows that it is an uni- 
versal interest to be defended against atavistic criminality, while 
in evolutive criminality the interest is restricted to the minority 
of the dominant classes. 

To this distinction between atavistic or anti-human and evolu- 
tive or (strictly) anti-social criminality there is the corresponding 
distinction between defense of society and defense of class which 
may degenerate into class tyranny. 1 The ideas of "defense of 
society" and " defense of class " are each incomplete. The synthesis 
that consolidates them is that the penal function whereby the 
State holds the individual responsible for crime committed by him is 
the expression and effect of a twofold natural necessity : on the one 
hand to preserve the whole collectivity from anti-human forms of 
criminality and on the other hand to defend a part of the collectiv- 
ity, the dominant class. This preservation and this defense will 
prevail differently according as the criminality may be atavistic or 

lence or abuse (threatening letters or personal restraint) or consist in atrocities (of 
cruelty, cannibalism, etc.)- It is found in occasional criminals and those of pas- 
sion (who become bandits after a murder caused by jealousy and spite) as well as 
in habitual and congenital criminals. This explains the fascination exercised by 
brigand-chiefs. 

1 Many ties between civil law and the dominant class can be given, about which 
so much has been written. Menger, "Le droit civil et le proletariat" (1889). 
Spencer recognized this, "History has shown in an irrefutable manner that those 
who have the power use it to their own advantage." "Justice," § 106. 



§ 229] OBJECTIONS TO NEGATION OF FREE WILL 337 

evolutive; in the first case attacking the inherent conditions of 
human existence, and in the second, the politico-social order, 
which is always historically transitory. 1 This synthesis clearly 
distinguishes the part in penal justice which concerns the transi- 
tory interests of the dominant class and the part which touches 
the imprescriptible necessities of individual and social defense 
against the disease of criminality, which is analogous to the other 
diseases threatening human existence. Furthermore, by virtue 
of this synthesis the positivist criminal school is entitled to give a 
wider, more complete, and more efficacious meaning to the formula 
of social defense. In the actual state of society, defense of society 
should be understood to mean not only the protection of the whole 
collectivity against the attacks of atavistic criminality but also the 
defense of the dominant class against the assaults of evolutive 
criminality, while the State should be defended against evolutive 
criminaUty differently than against atavistic criminality. 2 But in 
the future of "penal justice," on the contrary, science must indi- 
cate and impose an ever-growing and ultimately exclusive pre- 
dominance of the permanent and common interests of the entire 
collectivity, if not altogether ehminating, at least reducing to the 
min imum the part which concerns class interests and privileges, 
thus changing penal justice from a mechanism of political domina- 
tion into a preservative social clinic. 3 And, to make use of the 
former words in the new meaning that they contain, the theory 
which regards social defense as the basis of the punitive function 
still corresponds, thanks to the above-mentioned synthesis, to the 
positive and actual conditions of contemporaneous society: but it 

1 This Marxist doctrine on the interest and privilege of the dominant class 
explains the reasons and excesses in the repression of political and social crimes 
as the misoneistic theory of Lombroso shows the social and personal growth of 
political crime. Each is completed by the other, and both theories together give 
a true representation of the fact. 

2 Then, on the other hand, personal or collective egotism, doubled by fear often 
simulated but largely sincere, is frequently the cause of excesses in defensive reac- 
tion. So we see that evolutive criminality is often, not only in exceptional laws 
but in ordinary statutes, punished more severely than atavism. 

3 An analogous solution must be given to the social function of religion. Kidd, 
in "Social Evolution" (London, 1895), openly states that the duty of religion is to 
moderate and repress individual activities in conflict with social interests (those of 
the dominant class). Loria, among others replied, "La theorie sociologique de 
M. Kidd," R. I. S. (July, 1899), that not only is religion thus demoted into an ally 
of the policeman (that is to say of the district-attorney, in that it protects the 
interests of the ruling class) but such a theory makes it disappear when a more 
advanced economy will have done away with class antagonism. 



338 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 229 

nevertheless remains the object and criterion of future modifica- 
tions, inevitable, and already on foot, which are changing penal 
justice by making it conform to the data supplied by anthropol- 
ogy and sociology on the causes and, hence, on the remedies 
against criminality. 



CHAPTER IV 

PRESENT FORMS OF DEFENSIVE REACTION 

Theory of natural sanction. Physical, biological, social. Man is responsible for 
his acts, because he lives in society. 

§ 230. Punishment not Based on Moral Responsibility. 

The refutation of these objections facilitates the establishment 
and definition of the first and less heterodox part of our general 
conclusion; viz.: that the punitive agency is a pure and simple 
function of the defense of society. There remains the second 
part, which belongs properly to the positivist school, viz.: the 
complete withdrawal from the punitive agency of every crite- 
rion of responsibility or moral culpability and substituting a 
more positive criterion which at all events cannot be contested 
solely on account of differences of religious or philosophical be- 
liefs or mental habits. 

This part, peculiar to the positivist school and outlined in 
my essay "sul diritto di punire come funzione sociale," is 
to-day accepted by other positivists and by some eclectics. It 
has since acquired citizenship in the scientific world and retains 
its essential lines intact. Yet to anticipate verbal misapprehen- 
sions whereon certain opponents base all their criticisms, 1 it is 
well first of all to give precision to the terms of the problem and 
especially to these terms, viz.: imputability, culpability, re- 
sponsibility, punishability, and the like. The two extreme op- 
posite points of the question are: an offense by an individual 
and a punishment provided by the law-giver and applied by a 
judge. The whole problem consists in determining the con- 
ditions by which these two points can be brought together. 

§ 231. Punishment Requires Physical Imputability. 

The first obvious condition is that the delict shall have been 
committed by the man placed on trial. In other words, there is 
first of all necessary physical imputability which makes it possi- 

1 "Actes du 2^me Congres" (Paris, 1890), p. 360. 
339 



340 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 232 

ble to impute materially any given physical or muscular act 
to the man who has committed it because there is always 
something of this nature even in what is called moral partici- 
pation of an accomplice, such as the instigator of the crime or 
he who has ordered it. The act must be his. And hence it is 
that the essential and fundamental point of first condition in 
the practical administration of criminal law is material evidence, 
direct or indirect, establishing, first, that the crime has been 
committed; second, that it has been committed by the person 
on trial, and hence, that it is his act. To meet this second 
requirement, it is further necessary, apart from the fact that it 
was materially executed by him, that there was present in him 
the last phase (external or muscular) of a physio-psychological 
process psychically free, such as I have sketched above 
in the discussion of free choice. One who under coercion of 
another commits or omits an act that he should not or should 
have performed is but an instrument. The real author is he 
who coerced him to commit or omit it: as Wallaston says: "He 
does not act but is acted upon." Consequently, in such cases the 
materially coerced doer of a wrongful act is neither responsible nor 
punishable, not because he did not "freely will it" nor even 
because he has not "willed" it at all (as I will say presently in 
connection with the eclectic theory on what is "voluntary"), 
but solely because he is not the author, and hence the crime is 
not his crime and is not the index and effect of his personality and 
his personal manner of reacting against environment. 

§ 232. Legal Responsibility. 

Assuming that it has been established that the crime has really 
been committed by the accused, that there was present his personal 
and physically-free mode of reaction against the external environ- 
ment, that is, assuming physical imputability, does this connection 
of physio-psychological causality between the act and the agent 
suffice to make him punishable? Does it cause political imputa- 
bility or punishability or moral responsibility, for these words are 
synonymous? That is the whole question. The classical school has 
always maintained, and still maintains, that to identify political 
imputability or penal responsibility with physical imputability 
there must further intervene, as an intermediate term or essential 
condition, moral imputability, or responsibility, or culpability, 
all of which are the same thing. This moral responsibility is 



§ 233] PRESENT FORMS OF DEFENSIVE REACTION 341 

based on two conditions: free will and normal intelligence (or 
conscience) in the author of the crime. The positivist school, on 
the contrary, maintains that as there is no free choice or free 
will, neither is there responsibility, culpability, or moral imputa- 
bility: and this does not involve as a consequence that there 
should also disappear all political imputability or penal accounta- 
bility of the wrongdoer. It maintains quite the reverse (and 
this is its radical innovation), that physical imputability of crime 
is sufficient to constitute penal accountability, it being naturally 
at liberty to seek other objective and subjective conditions to 
adapt the practical forms of penalty or defense of society, to the 
different categories of criminals and of crimes, as I shall explain. 

§ 233. Objection that New Penology is Not Based on Right. 

Certain eclectic theories were suggested midway between these 
two views, after the second edition of this work. I shall not touch 
on them till later. The eclectic theories all agree in considering the 
condition of moral responsibility necessary in order that punish- 
ability should be identified with physical imputability, and pun- 
ishment with crime, while they vary the criteria of this moral 
responsibility, considered as so indispensable and which they under- 
take to establish outside of the criterion of an "absolute free 
choice," whereon the pure classical doctrine rests. Whatever 
theory be accepted, these words — imputability and responsibility 
— are equivalent and change their meaning only with the adjec- 
tive qualifying them, becoming physical, moral, or penal responsi- 
bility and imputability as they may be used. 1 This second 
part of the problem, the independence of penal accountability 
from moral responsibility, was first outlined by me in the essay 
"sur le droit de punir comme fonction sociale" and later de- 
veloped in the second edition of this book in response not only 
to the flattering solicitations of a kindly critic, 2 but also in reply 
to another oft-repeated objection made by persons not very fa- 
miliar with the new order of ideas introduced by modern sociology. 
They claim that the penal agency should be reduced to a mere 
"defensive mechanism" devoid of any higher norm of right and 
"should sanction the prohibition of harmless acts under pretext 

1 The phrases juridical or legal responsibility are more generally used when 
the social reaction against individual action does not entail restraint but only legal, 
civil, political, or administrative disability. 

1 Paulham, "Analyse des Nuovi Orizzonti," R. P. (November, 1881), p. 533. 



342 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 234 

of public utility in conceding to social authority the tyranny of 
arbitrary power." 1 "The innocent and the guilty might be stricken 
indifferently if the death of the former should be considered as 
useful as that of the latter." 2 This objection is refuted by 
both history and logic. It is refuted by history, for in the words 
of Girardin: 3 "What is history if not the bloody martyrdom 
of a numberless multitude of victims immolated by ignorance, 
superstition, and cruelty, armed with the right to punish," even 
when jurists spoke, as they still speak, of justice and the divine 
mission, or even the supreme and absolute norms of law? It 
is refuted by logic, because (aside from the fact that such an 
objection has the serious defect of proving too much) when science 
has given its rules (according to our opponents, rules of eternal 
and absolute justice; according to us, rules of social and relative 
justice) its task is complete. Either social power, the executive 
organ of the social function, follows the rules of science and then 
the "arbitrary" disappears; or it does not follow them, and then 
we say that the abuse of a principle never proves its falsity. 
Science has only to take cognizance of such abuse in order to end 
it, or at least by pointing out its existence, to facilitate the struggle 
for better law from which every social and legal reform is born. 

§ 234. Positivistic Basis of Penal Law. 

These are the rules of legal and social life in all that concerns 
the preservation of order, which the positivist school strives to 
establish in extracting them, no longer from subjective and "a 
priori" principles but from the daily observation of facts. We 
have expounded above this observation of facts in reference to 
the succession in time, in studying the natural evolution of the 
defensive reaction against acts harmful to the individual or society; 
we must now complete it in relation to present existence in actual 
society by studying some facts so common and characteristic 
that they have hitherto been neglected by criminologists. From 
the planetary equilibrium to the crystallization of minerals, from 
the first beginning of organized and living matter to the indi- 
vidual existence of animals and man, from the social relations of a 
zoophyte with its colony to those of man with the society of which 
he is part, life is always and everywhere an incessant, inexorable 

1 Carrara, "Programma" P. gen., last edition (1886), I, 42. 

2 Franck, " Philosophie du droit penal" (Paris, 1880), p. 18. 

3 Girardin, "Du droit de punir," pp. 33, 174. 



§ 235] PRESENT FORMS OF DEFENSIVE REACTION 343 

succession of actions and reactions. Even restricting it to living 
beings, especially animals and man, the concept of sanction rules, 
which is equivalent to that of reaction. Since man is at the 
last stages of the grand pageant of life, he is primarily subject to 
the same sanctions as the inferior orders in nature, sanctions com- 
mon to him and every other portion of matter. Then he passes 
under the sanctions of a higher order which is not peculiar to him 
exclusively, but is shared by the higher animals, although only 
in him is it found in the much higher and more complicated degree 
viz. : the social order. Precisely because there is a distinction in 
nature between physical and biological and social orders, there 
are also three great classes of reactions or corresponding sanctions, 
— physical, biological, social. 1 

§ 235. Physical, Biological, and Social Sanctions. 

The man or animal that, even unconsciously, involuntarily, 
or by constraint, violates the laws of nature, finds in nature 
itself an irresistible reaction or sanction. He who leans too far 
out of a window, even with the most moral or benevolent intention, 
falls. This is the physical sanction. Whoever eats too much, 
gets indigestion, becomes ill and suffers; whoever abuses his 
organism, whether in its physiological or psychological func- 
tions, flies in the face of a multitude of suffering, and often ruins 
his physiological or intellectual health. This is the biological 
sanction. A passer-by who in his absentmindedness and without 
intent to injure, jostles another, evokes in the latter a reaction 
either in words or acts. If he protests that he had no wrong 
intentions, the reaction is less lively, but not absent; a less favor- 
able opinion of him will remain; so that if his distractions are 
habitual the opinion will spread and there will grow up about 
him an isolating atmosphere, causing him continual humiliation, 

1 Guyau, "Critique de I'idee de sanction," R. P. (March, 1883); "Esquisse d'une 
morale sans obligation ni sanction" (Paris, 1885), Bk. Ill, distinguishes the fol- 
lowing kinds of punishment viz. : natural, moral, social, internal, religious sanctions, 
and those of love and fraternal feeling, and he reaches this easy conclusion that 
"punishment becomes an entirely human idea." He adds, however, that sanctions 
must cease to be chastisement for evil done to become loving rewards for good. It 
must change its quality of punishability to amiability. This latter idea, which is 
also that of Fouillee, seems incomplete, because either it is relative and means that 
fraternal cooperation accompanies repression from the very beginning to the de- 
velopment of civilized life, in which case the theory is excellent but a little too 
new; or else it is absolute, and then it presupposes the disappearance of evil from 
the human world. 



344 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 236 

not to mention damages to which he may be submitted. The 
same is true of him who is slanderous, ignorant, proud, or avari- 
cious. A merchant who not by his own bad faith but through the 
abuse of his confidence by others suffers reverses and becomes 
bankrupt, a man who with honest initiative strives to open up a 
new source of wealth but fails, falls into misery and neglect. He 
who in good faith executes an act contrary to law sees this act 
annulled and must, to his prejudice, submit to all of the conse- 
quences of such nullity. He who causes an unintentional injury 
to another even without personal participation, as by the act of 
his son, servant, or animal, is required to pay the damage. A 
poor madman who attacks a passer-by, it may be with the insane 
idea of doing good, is wounded, perhaps killed. His mere inof- 
fensive but noisy appearance on the streets is ground enough to 
deprive him of his liberty and lock him up in an asylum. A cab- 
man who without malice or intent injures or kills a pedestrian is 
sentenced to an imprisonment which may cause his material and 
moral ruin. 

§236. Kinds of Social Sanctions: Coercive. 

These are so many forms of social sanction : examples of them 
could be multiplied, and they can be grouped in the following 
genera of social (coercive) sanctions : public opinion — eco- 
nomic consequences — nullity of acts performed — reparation 
in damages — violence inflicted (either by self-defense or adminis- 
trative measure). The positivist reason for these sanctions, vary- 
ing in form and intensity with the different acts which induce 
them, consists, as Holmes observes, in this, that "men live in 
society and this makes necessary a certain average conduct, a 
sacrifice of peculiarities exceeding a given limit. If a man be born 
irrascible and awkward and continual accidents befall him as a con- 
sequence so that he suffers and causes his neighbor to suffer, his 
innate defects will find excuse before the celestial tribunal, but 
here below his blunders are no less disagreeable to his fellows 
than if they were intentional or negligent misdeeds. They are, 
therefore, right in demanding that at his own risk and peril he 
place himself on their level and the courts established by them 
are right in not taking into account his personal peculiarities." x 

1 Holmes, "The Common Law." 



§ 239] PRESENT FORMS OF DEFENSIVE REACTION 345 

§ 237. The Essential Quality Common to All Forms of Social Sanction. 

Now, what is common, and therefore constant and essential, to 
all these infinitely varied forms of reaction and social sanction 
for them to appear in the domain of customs and conventionali- 
ties and have a social sanction is this simple but very impor- 
tant fact, that the sanction itself is always independent of the 
will and moral culpability of the individual. This mark, it should 
be observed, is also perfectly common and constant in the other 
categories of natural sanctions, the physical and biological. 

§ 238. The Essential Quality Common to All Forms of Remunerative 
Social Sanction. 

When we proceed from the forms of coercive sanction to the 
forms of remunerative sanction (for these will not cease to grow 
in importance in the social life of the future, in proportion as the 
present fetishism of punishment becomes weaker, a fetishism 
in the family, in the schools, and in society that thinks only of 
repression in directing the conduct of men), we see the objective 
autonomy of sanction in existence equally for good acts, namely, 
acts useful to the community which give place to the different 
forms of remunerative sanction. For recompenses, the social 
reaction is again always independent of the will or effort of the 
individual: the opera singer with a golden voice, the poet with 
facile inspiration, the man with a charming appearance, are courted 
and caressed, although they have done nothing to obtain their 
gifts. Even in the case of tireless study and more or less apparent 
sacrifices, it is always through the natural disposition of the indi- 
vidual in the given conditions of environment (likewise independ- 
ent of his will) that a man can achieve a high position in society 
and enjoy the advantages of remunerative sanctions. If success 
depended only on our free choice, all but idiots would become 
eminent. But such is not the case, because "to will is to be able " 
is only true where one is able to will. 

§ 239. Social Sanction and Crime. 

Thus, departed from the mere reaction of public opinion and 
arrived at the case of penal condemnation, we are not yet on the 
real ground of the right to punish, on the ground of criminality 
or real evil acts. We have remained either in the extra-legal 
field of public opinion or in the legal realm of civil or adminis- 



346 POSITIVE THEORY OF PENAL RESPONSIBILITY [§ 239 

trative law or of law which is not properly penal. We have, there- 
fore, before us the vast field of crimes properly so called and of the 
really penal sanctions which belong to them. 

The man who steals with or without violence for his own 
illegitimate gain, who kills to satisfy a premeditated revenge, 
or ravishes from brutal licentiousness; the merchant who 
plans his bankruptcy, the slanderer who wishes to ruin his 
victim, and the like, bring down on themselves (when it does 
reach them) a rigorous social sanction under the forms of real 
penalties in the proper sense of the word. This is justice. 

The fact of an inevitable social sanction is not concerned of itself 
either in these crimes or in those we have heretofore mentioned. 
The object of the discussion is to find out whether this social 
sanction does or does not depend upon the condition of "free 
will" and, hence, of "moral culpability" as is maintained by 
the classical criminal science and by penal legislation. This is 
exactly what the positivist school disputes and denies. 

For what reason should society, which reacts severely in 
all the other numberless cases of anti-social action without 
examining them for elements of free will and moral fault, 
demand this element as a condition "sine qua non" of de- 
fensive reaction when there is question of other acts at least 
as anti-social? Putting aside for a moment the preconceived 
ideas, the mental and sentimental habits of the past, one can 
see at a glance that this reaction or social sanction against acts 
compromising the condition of human existence is natural and 
hence is as necessary and inevitable in the physical, and biological, 
as in the social order. If we complete the series of different kinds of 
social sanctions in the extra-legal, in the civil and administrative, 
and in the really criminal domains, beginning with the lowest step 
of the ladder, that is to say from the simple sanction of public