Modern theories of criminality

H 5

UNIVER
DEPARTMENT/

OF TORONTO
PSYCHOLOGY

MODERN THEORIES
OF CRIMINALITY

S CRIMINAL SCIENCE SERII

utdtr Ike autpice* A/ the American Institute of Criminal Law
and Criminology

1 Modern Theories of Criminality. By C. BERNALDO DE QUIROS, of
Madrid. Translated from the Second Spanish Edition, by Dr. ALPHONSO DK
SALVIO, Assistant Professor of Romance Languages in Northwestern University.
With an American Preface by the Author, and an Introduction by W. W.
Burnous. Esq., of Philadelphia, Secretary of the Comparative Law Bureau of
the American Bar Association.

Criminal Psychology. By HANS GROSS, Professor of Criminal Law in
the University of Gnu, Austria, Editor of the " Archives of Criminal Anthro-
pology and Criminalist ics," etc. Translated from the Fourth German edition,
ov Dr. HORACE M. K ALLEN, Lecturer in Philosophy in Harvard Univ<
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 Pro-
fessor of Psychiatry and Legal Medicine in the University of Turin, author of
the " Criminal Man," etc., 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 Columbia, Mo. With an Introduction by
MAURICE P ARM E LEE, Associate Professor of Sociology in the University of
Missouri.

4. The Individualization of Punishment. By RAYMOND SALEI
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. Criminal Sociology. By ENRICO FERRI, Member of the Roman Rjir,
and Professor of Criminal Law and Procedure in the University of Rome, Editor
of the " Archives of Psychiatry and Penal Sciences," the " Posit ivist School in
Penal Theory and Practice," etc. Translated from the Fifth Italian, and Second
French edition, by JOSEPH I. KKLLY, Esq., of Chicago, formerly Lecturer on
Roman Law in Northwestern University and Dean of the Faculty of Law in (lie
University of Louisiana. With an American Preface by the Author, and an In-
troduction by CHARLES A. ELLWOOD, Professor of Sociology in the University
of Missouri.

6. Penal Philosophy, By GABRIEL TARDE, Late Magistrate in PicunK,
Profenor of Mod'-™ Philosophy in the College of France, and Lecturer in the
Paris School of Political Science. Translated from the Fourth French edition, by
RAFELJE HOWBLL, Esq., of the Bar of New York City. With an Introdi;

by ROBERT H. GAULT, Assistant Professor of Psychology in Northwestern Uni-
Tenity, and Managing Editor of the Journal of the Institute.

7. Criminality and Economic Conditions. By W. A. BONGER, Doctor in
Law of the University of Amsterdam. Translated from the French by HKNRY I1.
HORTON, M. A., of Ithaca, N. Y., and VICTOR VON BOROSINI, of Chicago, 111.

8. Criminology. By RAPFAELLE GAROFALO, former President of the Court of
Amah of Naples. Translated from the First Italian and the 1 nth 1

, by ROBERT W. MILLAR, Esq., of Chicago, Lecturer in Northwestern

0. Crime and Its Repression. By GDBTAV ASCHAFFENBI KO. I'rofe^
TOeMaHy in the Academy of Practical M, the

•«U of Criminal Psychology and Criminal Law Reform." Trans-
tatod from the Second German edition !>> ADALBERT ALBRECUT, of South Easton,

THE MODERN CRIMINAL SCIENCE SERIES

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

Modern Theories of
Criminality

*'**'
BY Cf'sERNALDO DE QUIR6S

Translated from the Spanish

BY ALFONSO DE SALVIO, PH. D.

Assistant Professor in Romance Language*
Northwestern University

WITH AN INTRODUCTION BY WM. W. SMITHERS, Es«.

BOSTON

LITTLE, BROWN, AND COMPANY
1912

595502

Copyright, 1911,
BT LITTLE, BROWN, AND COMPANY.

All right* reserved

A. J. r A IE HILL A Co., no.Ton, U. B. A.

TO MY SONS

JUAN AND CONSTANCIO

IN MEMORY OF MY PARENTS

GENERAL INTRODUCTION TO THE
MODERN CRIMINAL SCIENCE SERIES.

AT the National Conference of Criminal Law and Crim-
inology, 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 presi-
dent appoint a committee of five with power to select such
treatises as in their judgment 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 transla-
tors, for the immediate undertaking and rapid progress of
the task. It realizes the necessity of educating the profes-
sions 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.

viii GENERAL INTRODUCTION

Two centuries ago, while modern medical science was still
practitioners proceeded upon two general
\: one as to the cause of di>c;ise, the other as to
it* 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 operation. As to the treatment of
disease, there were believed to be a fewt remedial agents of
universal efficacy. Calomel and blood-letting, for example,
were two of the principal ones. A larger or 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 every-
where 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 capable of prevention or control or counter-
action. As to the treatment, we now know that there are
various specific modes of treatment 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 under-
standing 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; abso-
lutely 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
science, here as in medicine, recognizes that crime

GENERAL INTRODUCTION ix

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 pro-
duce it in a given case. And as to treatment, modern science
recognizes that penal or remedial 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 physi-
cal and moral 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 meas-
ures 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 gen-
eral 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.

x GENERAL INTRODUCTION

The Institute therefore takes upon itself, as one of its aims,
to inculcate the study of modern criminal science, as a press-
ing duty for the legal profession and for the thoughtful
community at large. One of its principal modes of stimulat-
ing and aiding this study is to make available in the English
language the most useful treatises now extant in the Con-
tinental languages. Our country has started late. There
is much to catch up with, in the results reached elsewhere.
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 vari-
ous aspects and emphases — the anthropological, psychologi-
cal, sociological, legal, statistical, economic, pathological -
due regard was paid, in the selection, to a representation 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.

The selection made by the Committee, then, represents
its judgment of the works that are most useful and most
instructive for the nnrpose of translation. It is its conviction
that this Scrips, whan completed, will furnish the American
student of criminal science a systematic and sufficient ac-
quaintance with the controlling doctrines and methods
that now hold Oie stage of thought in Continental En

GENERAL INTRODUCTION xi

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 ex-
perience. But it is certain that we must first acquaint our-
selves with these results of a generation of European thought.
In closing, the Committee thinks it desirable to refer the
members of the Institute, for purposes of further investiga-
tion 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 Com-
mittee believes that some of the Anglo-American works
listed therein will be found useful.

COMMITTEE ON TRANSLATIONS.

Chairman, WM. W. SMITHERS,

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

ERNST FREUND,

Professor of Law in the University of Chicago.

MAURICE PARMELEE,

Professor of Sociology in the State University of
Kansas.

ROSCOE POUND,

Professor of Law in the University of Chicago.

ROBERT B. SCOTT,

Professor of Political Science in the State University
of Wisconsin.

JOHN H. WIGMORE,

Professor of Law in Northwestern University, Chicago*

INTRODUCTION TO THE ENGLISH
VERSION.

THE science of criminology is a secondary evolutional con-
sequence of the study of penology. The early writers who
from humanitarian impulses condemned the severities
attending the administration of criminal law in both its
evidential and punitive features had no thought of creating
a new science. While they secured great penological
reforms they never departed from the traditional theory
that a law broken meant that there was a wilful trans-
gressor, who deserved to suffer retributively. The con-
ception of imposing punishment was as impersonal as it
was instinctive. Only in degree was there any ameliora-
tion of the ancient savagery. From the time when Mon-
taigne wrote " How many sentences I have seen more
criminal than the crimes themselves! " until Servan, the
great French jurist, declared " Humanity is a sixth sense,"
although in the interim D'Aguesseau, Montesquieu,
Beccaria and Blackstone had written, the offense, — the
manifestation of contempt for the majesty of the law —
continued to be the pole-star of all criminal law. Even after
Howard, Bentham, and Romilly had secured substantial
prison reforms in England, evidential torture had ceased
on the Continent, and through the efforts of Rush, Vaux,
and Livingston the Pennsylvania system of penitential
incarceration had become generally recognized in this
country as the most rational and humane the world had
until then known, still criminology was so inextricably
entwined with penology that its true principles were over-

INTRODUCTION TO ENGLISH VERSION

shadowed and undefined. The field of the causes and
nature of crimes and the treatment of criminals from
their psychological, physiological and social relations to
the offense lay practically unexplored. The offender was
observed but not studied. He was pitied and his suffer-
ings humanely ameliorated but he steadily remained a
logical object of vengeance because he had done that
which a law had forbidden him to do.

This deeply imbedded tradition was not easily cast aside
and even when by force of treating the results of crime
men fell to questioning the causes the new thought had
to occur again and again, be expressed with misgivings,
dallied with as a novelty and derided as a sophistry until
familiarity of suggestion lodged the thought of its possibly
being a matter worthy of real attention and reflection.
However, every attempt to adopt a theory was trammeled
by the phantom tradition of the centuries, — the cry for
vengeance by the outraged law. It took more than a
hundred years for shaded and vague expressions to emerge
into positive assertion by any considerable number of
savants that the criminal and not the crime should be the
object of investigation and study.

Supported finally during the past fifty years by the
greatest legal, medical and social philosophers, the true
lines of criminology have gradually become clearly defined
and the materials for its true application are constantly
increasing. By its principles the problems which were
perplexing, because beclouded by ancient errors, are being
solved in consonance with the progress which! has marked
other phases of life. The bases of action are appreciated
and the proper remedies being provided by close study
and statistical records. A rational theory has been
and adopted.

INTRODUCTION TO ENGLISH VERSION xv

Obedience to the law is recognized as a normal condition.
It is now admitted that moral character depends upon a
condition of equilibrium amid the emotional, volitional,
and intellectual forces. When that equilibrium is dis-
turbed to the point of law-breaking then the criminal
becomes a special object of consideration and the causes of
his abnormal state a matter for study. Those causes have
already been ascertained to a large extent. The criminal
being the product of cosmic, biological, or social influences
which put him out of harmony with conventional morality
and cause him to disturb the recognized aims of community
existence, must be treated as a ward of the State for the
purpose of curing his impairment and meanwhile keeping
him so sufficiently restrained as to prevent injury to others.
These are the practical guiding principles which the true
science of criminology is rapidly making more accurate
and more capable of application.

It is not enough, however, for a student to know the
definition of a science which is a product of evolution and
therefore progressive. It is indispensable that he be
familiar with every phase of its development and be able
to distinguish the real and durable amid the exaggerated,
the false and the ephemeral. Since the impetus to the
study given by Dr. Paul Broca in founding the Anthro-
pological Society of Paris in 1859 many distinguished
scholars have written upon different phases of criminology
and advocated a variety of theories as to which they have
differed not a little. Several schools have arisen, none of
which is without followers, and many have abundant
adherents and earnest teachers.

The great work of Senor de Quiros, — Las nuevas teorias
de la criminalidad (Modern Theories of Criminality), —
now presented for the first time in the English language,

xvi INTRODUCTION TO ENGLISH VERSION

reveals all the shades of thought which have marked the
development of the science and constitutes a compendium
that no student of the subject can ignore without disad-
vantage. It is a concise survey of all the European
writers on Criminal Science during the last century, by
one whose untiring attention to details, earnest effort for
accuracy, and pre-eminent faculty of comparison and
analysis, have given him a deservedly high place among
the scholars of Europe.

Senor C. Bernaldo de Quir6s was born in Madrid
December 12, 1873, and was licensed to practise law in
1894. While pursuing the ordinary lines of his profession
he became an interested, searching and zealous student of
criminology, and devoted several years of study of the
great mass of European literature on the subject. After
diligently and discriminately gathering his materials as a
a basis for sound deduction and means of weighing the
theories of the rapidly developing schools, he spent some
years in writing this work, and finally published it in 1898.
Its immediate and lasting success removed any doubt
that he might have entertained concerning his life work.
He shortly after began preparing the data for his next
offering on the subject, which was published in 1901 under
the title La mala vida en Madrid (Low Life of Madrid)
written in collaboration with J. M. Lianas Aguilaniedo.
This work is a highly meritorious and valuable psycho-
sociological treatment of criminals, prostitutes, beggars,
and that multitude of degenerate human flotsam and
jetaam known in modern Spanish as golfos, a term which
embraces all and more than our word " vagabonds."

Thin book marked the line of efficiency for Senor de
Quires, and he earnestly accepted the burden of joining
hii manifestly special abilities to those of the other great

INTRODUCTION TO ENGLISH VERSION xvii

Continental writers in promoting the science of criminology.
In 1903 he published El Alcoholismo ; and the next year
his article on Literatura espanola del alcoholismo appeared
in the Bibliographic der gesamten wissenschaftlichen Lite-
ratur uber den Alkohol und den Alkoholismus (Bibliographical
Collection of the Scientific Literature on Alcohol and
Alcoholism) of Dr. Abherhalden, which was a recognition
given only to those standing high among Continental
scholars. In the jsame year he wrote Biblioteca de ciencias
penales (Library of Penal Science), and also Alrededor
del delito y de la pena (Concerning the Offense and the
Penalty). In 1906 the Institute de Reformas Sociales was
founded and he was chosen one of its staff of governing
officials, a position which he still occupies. He signalized
this definite acceptance of his mission by publishing in
the same year Vocabulario de Anthropologia criminal and
Criminologia de los delitos de sangre en Espana (Sanguinary
Crimes in Spam). Both works bear his characteristic
marks of careful preparation and scientific treatment.
The latter deservedly ranks high among the foremost
collection of works on crime in particular countries. In
1907 he published La Picota (The Head-Exposure Post)
comprising a most interesting account of crimes and
punishments in the Castilian country during the middle
ages. The effort to be accurate historically is so apparent
that trust in his honesty of purpose and thoroughness of
research cannot be withheld.

In 1908 the general acceptance of Senor de Quiros as the
leading Spanish writer on criminology was such that a
second edition of his earliest work became imperative; but
he permitted it only after a most careful review of the
whole text and revision of certain parts which he deemed
would contribute to its completeness as a practical guide

\viii INTRODUCTION TO ENGLISH VERSION

to those bent on basic research. It is from this second
edition that the present translation has been made. He
has personally revised a copy for our translator. During
its progress he has also published (1909) Figuras delin-
cutnte* (Some Types of Offenders), containing several
antique judicial records.

Appreciation of his researches and views has recently
(1910) been expressed by a translation into German of
La, mala vida en Madrid by Dr. Bloch of Berlin, with an
introduction by the late Dr. Caesar Lombroso, penned
by that distinguished criminologist and statistician not
long before his death.

Such a work from such an author becomes invaluable to
every student of criminology.

W. W. SMITHERS,

Chairman of the Committee on Translations of the
American Institute of Criminal Law and Criminology,
and Secretary of the Comparative Law Bureau of the
American Bar Association.
PHILADELPHIA, PA., December 1, 1910.

PREFACE TO THE FIRST SPANISH EDITION.

THE interest that penal questions awoke in me, as soon as
I came to know them, found its most favorable opportunity
for application while following the courses in the Philosophy
of Law given at the Central University by Don Francisco
Giner de los Rios.

Among the various subjects, which, according to their
tastes and likings, the students of this department — a
true laboratory of social and legal sciences — brought up
for discussion, I presented for three years the question of
modern theories of criminality. At the end of that time, the
books and publications consulted, the conversations held
among all present, and the constant stimulus exercised upon
the mind from various directions formed a material of no
mean importance and consideration, which, if put together
and revised once more, I thought could be presented to the
public in the hope that it might prove useful for the knowledge
and diffusion of such an interesting subject.

Thus grew this work; and in publishing it, not only I
fulfill a duty, but I also experience the long-awaited pleasure,
marred only by the knowledge of the scant value of the work,
of paying the most sincere and respectful homage of lasting
gratitude to the instruction of that beloved teacher, whose
delicate modesty prevents my saying more at the very start.
Nevertheless, I am extremely anxious that he be not held
responsible for the ideas my book may contain: useless
precaution, after all, when the essence and method of his
teaching are so well known to all.

While I take pleasure in writing these pages, I do not wish

XX

PREFACE TO THE FIRST SPANISH EDITION

to forget any one of those who have brought within my
r^ach books, reviews, pamphlets, and information, thus
nmlring possible the production of such a work, which neces-
sitates the largest possible number of data. I take occasion,
therefore, to openly express to them my heart-felt thanks.
Finally, my fellow students will surely permit me to remember
them in a book full of quotations from authors and works
which have not given me the assiduous collaboration and
kind advice that these friends have; we all know that the
real upbuilding of knowledge is due more to a bee-hive process
than to single-handed labor.

And now a few words concerning the book itself.

There are in Spain two other works of the same character.
Their worth is such that I shall have to refer to them through-
out. They are Dorado Montero's " Criminal Anthropology
in Italy," and Aramburu's " Modern Penal Science." 1 How-
ever, of the modern theories of criminality both treat only
the anthropological, to be sure the most novel on account
of its extraordinary apparatus unknown to jurists. More-
over, they limit themselves to expounding its operation in
only one country, Italy.

Again, they were published ten years ago. Therefore, my
work comes to complete and continue them to the best of
my ability. The movement of penal science and its auxiliary
disciplines, set forth by those writers in its beginnings, has
grown to such an extent and has become so intricate and
all-inclusive, that many times in looking through my pages
for a picture of the movement, I have been haunted by the
suspicion lest some one, in reading them, should say: " Was
it necessary in this book to re-write twenty years of general
history?"

1 Dorado Montero's Antropologia Criminal en Italia ; and Aramburu's
Cienda Penal.

PREFACE TO THE FIRST SPANISH EDITION xxi

I hasten to acknowledge beforehand that, although one
may see only the phases of the subject presented by me, much
more has been done and discovered in reference to modern
theories than is here set forth even if it be only the first form
of discovery, namely, the recognition of problems. But a
work such as this with the limitations imposed by various
reasons can only look at the subject from a point of view so
distant that only the most salient outlines become visible.

I will add no more concerning the work, since it is already
before the reader. I must only repeat that it is a work essen-
tially of information, seldom altered by the personal reflection
of the author. Incomplete or badly interwoven as the latter
may be, the author believes that the work will not be alto-
gether fruitless in our western and remote Spain. May
God give it power to suggest and stimulate the serious and
thoughtful study of crime and punishment, a study which,
to-day more than ever before, calls for men willing to devote
to it their whole life.

CONSTANCIO BEBNALDO DE Quraos.

AUTHOR'S PREFACE TO THE AMERICAN EDITION.

IN presenting to the American reader a new edition of
this work, I am glad to be able to correct not a few
structural, historical, and typographical errors of the first
edition, and, at the same time, to trace the history of the
movement up to the present day.

I will add that these two are not the only innovations
made in this edition. The entire contents of the book have
been recast in a new mold, which the author considers
preferable. The last chapter on "The Scientific Investi-
gation of Crime " is altogether new.

It only remains to be said that the author, after a careful
selection, mentions and expounds only what, in his opinion,
is fundamental or characteristic. It would be in vain for
him to suppose that nothing remains beyond this limit.
Perhaps this final remark was not needed.

The author is much pleased to see this book, originally
written in Spanish, translated into English: a language so
different in idiomatic expression.

C. B. DE Q.

MADRID, December 1, 1910.

CONTENTS

PAOB

GENERAL INTRODUCTION TO THE MODERN CRIMINAL SCIENCE

SERIES vii

INTRODUCTION TO THE ENGLISH VERSION xiii

PREFACE TO THE FIRST SPANISH EDITION xix

AUTHOR'S PREFACE TO THE AMERICAN EDITION • . . xxiii

CHAPTER I. CRIMINOLOGY 1

I. ORIGINS.

§1 1

§ 2. (1) Occult Sciences. — Physiognomy, Phrenology. —

Lauvergne, Carus, Casper 2

§ 3. (2) Psychiatry. — First Theories of Criminality. Degen-
eration and Moral Insanity. — Morel, Despine, Maudsley 5

§ 4. (3) Statistics. — Que'telet 9

II. THE THREE INNOVATORS.

§ 5. (1) Cesare Lombroso (1836-1909) 10

§ 6. (2) Enrico Ferri 19

§ 7. (3) Raffaele Garofalo 28

III. DEVELOPMENT.

§ 8. (1) Nature and Genesis of Delinquency .... 32

§ 9. (A) Anthropological Theories 37

§ 10. (a) Atavistic Theories. — From Bordier to Ferrero 41
6 Theories of Degeneration.

§11. (a) Generical. — From Magnan to Dallemagne 45

§ 12. (0) Specific 48

c Pathologic Theories.

§ 13. (a) Epilepsy. — Roncoroni, Ottolenghi, Perrone,

Capano, Lewis, etc 52

1 14. (/3) Neurasthenia. — Benedikt .... 52

§ 15. (7) Various Psychopathic States. — Ingegnieros 54

§ 16. (B) Sociologic Theories 55

§17. (a) Anthropo-Sociologic Theories. — Lacassagne,

Aubry, Dubuisson, etc 58

b Social Theories.

§ 18. (a) Failure in Adaptation. — Vaccaro . . 61

§ 19. (|3) Segregation. — Aubert .... 63

CONTENTS

PAOS

1 20. (-y) Parasitism. — Max Nordau, Salillas . 64
} 21. (c) Socialistic Theories. — Turati, Loria, Colajanni,

etc 66

§ 22. (2) International Congresses of Criminal Anthropology 79
3. Criminology in Spain and in Spanish America.

A. Spain 100

§ 23. (a) Beginnings 100

§ 24. (6) Contributions 101

§25. (c) Critique 120

1 26. (B) Spanish America 120

CHAPTER II. CRIMINAL LAW. — PENITENTIARY SCIENCE . . 123

I. ORIGINS.

§ 27 123

§ 28. (1) Criminal Law. — Beccaria and Roder . . .124
§29. (2) Penitentiary Science. — Howard . . . .127

II. TENDENCIES.

§ 30 129

§31. (1) Traditional. — Makarewicz 129

§ 32. (2) Reformers. — Liszt, Prins, Van Hamel, etc. . . 130

§ 33. (3) Radicals.— Vargha, Dorado, Tolstoy, Solovieff, etc. 135

III. APPLICATIONS.

§ 34. (1) Responsibility 142

§ 35. (2) Treatment of Delinquency 149

§ 36. (A) Treatment of Minors 150

§37. (B) Treatment of Adults 152

§38. (a) Persons Without Criminal Record. — Pardon.

Conditional Sentence 153

§ 39. (6) Recidivism — Deportation — Indeterminate Sen-
tence— Reformatories — Capital Punishment . .169

§ 40. (3) Prevention of Delinquency 194

§41. (4) Reparation of the Injury caused by the Crime 199
5. Criminal Law and Penitentiary Science in Spain and in
Spanish America.

A. Spain 202

§42. (a) Ideas 202

§ 43. (6) Laws 2O4

§ 44. (c) Institutions 205

§ 45. (B) Spanish America 206

CBAPTKR III. SCIENTIFIC INVESTIGATION OF CRIME ... 208
1. ORIGINS.

§46 .... 208

CONTENTS

PAG*

II. APPLICATIONS.

§47. (1) The Identification of Criminals . . . .210

§48. (A) Anthropometry 211

§ 49. (B) Dactyloscopy 213

§ 50. (C) The Word Portrait 216

§ 51. (D) The Biographical Ledger and the Album of the

Investigation of Criminals 218

§ 52. (2) The Revelation of the Traces of Crime . . .221
§ 53. (3) Inspection of the Place, of the Effects, and of the

Victim of the Crime 224

§ 54. (4) The Value of Testimonial Evidence .... 225
(5) Modern Investigation of Crime in Spain and in Spanish
America.

§ 55. (A) Spain 227

§ 56. (B) Spanish America 229

III. THE CRIMINAL'S REPLY.

§ 57 231

CONCLUSION.

§58 232

§ 59. I. The Movement 233

§ 60. II. The Present Status 236

§61. III. The Solution of the Future 237

POSTSCRIPT TO THE CHAPTER ON THE SCIENTIFIC INVESTIGATION

OP CRIME. §62 242

INDEX 245

MODERN THEORIES OF
CRIMINALITY.

CHAPTER I.
CRIMINOLOGY.

I.

ORIGINS.

Section i.

BEGINNING with the middle of the nineteenth century,
people have been speaking more and more of the criminal
in the same naturalistic sense which, in our days, found its
culminating expression in Professor Cesare Lombroso.

Original and strange as this sense may appear, it is certain
that history was preparing its way and that in it we find its
laborious genealogy and gestation. History, like nature, does
not advance by leaps. Its ages preserve the footprints of
forerunners and founders just as the geologic strata preserve
the fossilized species from which are derived those that people
the earth to-day.

Among the great complexity of forces that have determined
the new direction of modern penal thought, observation
discovers immediately a number that are nearer, more mani-
fest, purer, and of such a decisive influence on the origin and
tendencies of modern criminology, that, as a writer says,

2 MODERN THEORIES OF CRIMINALITY [§ 2

once granted their existence, what Lombroso has done would
have been realized, even if he and his collaborators had not
existed. These forces are:

a. The old preoccupation and longing to discover in man
the relations between body and soul, the correspondence
between spirit and matter;

b. The development of psychiatry; and

c. The rise of statistic science.

Sections (i) OCCULT SCIENCES. — PHYSIOGNOMY,
PHRENOLOGY.

Lauvergne, Cams, Casper.

The first factor is the same as that which has changed
astrology into astronomy, alchemy into chemistry, and
demonology into psychiatry. In fact, criminology, through
the doctrine of the criminal man, and especially through its
derived doctrine of the type, is connected with all those oc-
cult sciences, like chiromancy, metoscopy, podology, ophthal-
moscopy, etc., which sought the sensible expression of the
spirit in every part of the human body. Antonini has been
able to write an interesting book on this subject, entitled
" The Precursors of Lombroso." 1 Nevertheless, in his
account, many names have been necessarily omitted. As for
the Spanish precursors, Antonini's book can be complemented
by Montes* " Studies of Old Spanish Writers (Romano, La
Fuente, Estella, Vives, Huarte, Guevara, Zabaleta, Ponce
de Leon, etc.) on the Perpetrators of Crime."

Among those sciences, which were as numerous as the
various organs and functions of the body, natural selection
supported physiognomy, on account of the vague prejudice

1 Antonini, I precuraori di Lombroso, Turin, 1900.
* Monies, Enludio* de antiguos escritores espafloles sobre los agcntea del
detto; en la Ciudad de Dios, 1902 and IT.

§ 2] MODERN THEORIES OF CRIMINALITY 3

which considers the face as the most noble part of the body
and as the most worthy of manifesting the soul. The same
cause gave rise to phrenology; and both sciences, or pseudo-
sciences if you prefer, with more and more scientific apparatus,
spread everywhere with no less debate than criminal anthro-
pology has done in our days. Lavater (1741-1801) and Gull
(1758-1828), to mention only the most famous, are the direct
ancestors in ascending line of modern penal science. To be
sure they are separated by a considerable distance, but not by
a leap. A fervent disciple of Gall's, Lauvergne, studies the
convicts of Toulon, and, after attributing their criminal
instincts to the abnormal development of a part of the brain,
he describes the criminal type in strokes reproduced later by
Lombroso.

Speaking of cold-blooded assassins, whom he classifies as
" a rare species coming from the mountains and from out-
of-the-way regions," he says : " They possess marked pro-
tuberances and a peculiar face stamped by the seal of a
brutal and impassible instinct. Their heads are large and
receding with notable lateral protuberances, enormous jaws
and masticatory muscles always in motion." 1 Yet, a year
before, the physiologist Carus (1789-1869), in his "Prin-
ciples of a New and Scientific Craniology," 2 insisted upon the
anomaly in the cranial formation of delinquents. He stated
that they are distinguished by a narrow forehead, the insuffi-
cient development of the occiput, and the length of the
cranium. In his opinion, they are beings who tend exclusively
to a vegetative life and to the satisfaction of their material
life, lacking in reason and will-power and prone to offend

1 Les formats consider 6s sous le rapport physique, morale et intellectuel
observes au bagne de Toulon, Paris, 1844.

2 Grundzuge einer neuen und wissenschafttichen Kranioscopie, Stutt~
gart, 1840.

4 MODERN THEORIES OF CRIMINALITY [§ 2

at the first occasion. Similar references could be multiplied
till reaching Casper, who published a minute study of criminal
physiognomy in the " Quarterly Review for Medical Juris-
prudence, 185 ;

Disgusted at times by this kinship to occultism and SUJXT-
stitions, and compelled at other times, as if by necessity like
all other reformers, Lombroso tells us how " the novelty of
my most discussed conclusions goes back to prehistoric times.
Homer speaks of Thersites, Salomon writes that the heart
alters the face of the evil man, and, above all, Aristotle, Avi-
cenna, and J. B. Dalla Porta discussed extensively criminal
physiognomy, the last two going perhaps further than we
ourselves. What else shall be added, when Polemon, after
having insisted upon the narrow forehead of criminals, speaks
even of their mancinismo (left-handedness), an observation
which I thought to have been the first to make? "

The people also preserve in their proverbs, sayings, and
phrases an entire folk-lore of criminal anthropology, in which
one perceives traces of the same problem, constantly stated,
concerning the relations of body and soul. We find it also
in literature and art, fields already investigated by the modern
penal school. Worthy of mention are Lefort's monograph
" Criminal Type according to Scholars and Artists," 2 and
Fern's " The Delinquent in Art." 3 Other works of a more
specialized nature are Niceforo's " Criminals and Degenerates
in Dante's Inferno";4 Roux's "Balzac, Jurisconsult and
Criminalist "; 5 and Koni's " Dostoyewsky as a Criminalist." •

Nor does the past lack judicial applications in reference to

1 Harder PHysiognomien, in Viert. f. gerich. Mediz., 1854.
1 Type criminel d'apres lea savants et les artistes, Lyon, 1892.
• / delinquent nell'arte, Genoa, 1896.
« Criminali e degenerati dell' Inferno Dantesco, Turin, 1898.
BaUoe /uruooiwWte et criminaliste, Lyon, 1906. '
criminaliste, Paris, 1898.

§ 3] MODERN THEORIES OF CRIMINALITY 5

the criminal type. Valerio, for instance, records a mediaeval
edict ordering that in case of doubt between two suspects, the
one showing more deformity was to undergo torture. The
chronicles speak of a Medici who reserved final judgment
till the criminal had been examined physically: "Having
seen your face and examined your head, we do not send you
to prison but to the gallows." Under the old regime, as
Loiseleur affirms in his " Crimes and Punishments," * the
commentators Jousse and Muyart de Vouglans enumerated,
among the reasons for suspicion, the unfavorable physiognomy
of the accused. " And, in reality," adds Tarde, who quotes
from Loiseleur, " what more do we need to-day to decide a
judge who wavers among many suspects? "

Section 3. (2) PSYCHIATRY. — FIRST THEORIES OF
CRIMINALITY. — DEGENERATION AND MORAL
INSANITY.

Morel, Despine, Maudsley.

Psychiatry, more than any other science, can be called
a product of our century. In fact, in 1801, there appeared a
" Medical and Philosophical Treatise on Mental Aliena-
tion," 2 by Pinel (1745-1826), a work which inaugurated the
age of science and put an end to the age of corrective and
penal methods, properly speaking, against the insane; an
age, which the people record in one of their proverbs : * The
insane is sane for punishment." Although late in coming,
psychiatry met with a rapid development. After Pinel came
Esquirol, who was in turn followed for the space of a century
and a half by a great generation of alienists, who have con-
tributed in a decisive manner to the creation of criminology.

The ideas and even the words met in this science are found,

1 Les crimes et les peines, Paris, 1865. Quoted by Tarde in his La
criminality comparte, p. 21.

2 Tratado mtdico filosdfico sobre la enajenacidn mental.

6 MODERN THEORIES OF CRIMINALITY [§ 3

at least potentially, in the works of these predecessors. The
ideal portrait of the insane created by law begins from that
time on to disappear, and in its place there appear the outlines
of the criminal. The long list of the manias and alterations of
a single chord of the psychic key-board, its forms less and less
objective and more delicate and liidden to the mere eye and
good sense, the only criteria employed in former times; the
lack of crisis, spasms, and deliriums; its relative character,
in the double sense of manifesting itself in a single idea or
sentiment, and in mingling at the same time with the con-
ditions of health instead of successions as claimed by the old
theory of lucid intervals; the reproduction of juridical por-
traits of crimes on account of the inexhaustible and innumer-
able psycopathies, and many other items of analogous signif-
icance, have all extended the boundaries of mental infirmity,
reduced the field of delinquency, and prepared the explanation
of the morbid nature of crime. It is to be noted that in those
days the practical aspect of penal reform was not lacking;
this is shown by a complete set of works which fall under the
general title of " Conflicts between Psychiatry and the Code."

It is in the midst of frequent experiments that the first two
theories of criminality, degeneration and moral insanity,
begin to form themselves.

Three generations after the beginnings of psychiatry, the
theory of degeneration is set forth in France by Morel.1 Never-
theless, according to Dallemagne,2 he rather owes his ideas
on degeneration to natural sciences. Morel, in his classical
treatise " Physical, Intellectual, and Moral Degeneration of
the Human Species," s looks upon degeneration as a kind of

1 I'iiK 1, predecessor of Esquirol; Esquirol, teacher of Falret senior;
Falret, teacher of Mon I.

* Dtgtneren et destquilibre*, Brussels, 1894, p. '.»'».

1 Degeneration** fisicas, intelectualcs y morales de la especie humana,
Pariu, 1857.

§ 3] MODERN THEORIES OF CRIMINALITY 7

retrogressive natural selection, a degradation, using the word
not in its ethical sense and without any meaning of contempt.
His starting point is " the existence of a primitive type which
the human mind reproduces in its own thought as the master-
piece and culmination of creation — a view which agrees
so well with our own ideas, — and that the degeneration of
our nature is due to the going astray of the primitive type,
which contains in itself all the necessary elements for the
preservation of the species." Intent upon making the latest
scientific discoveries come within the scope of the purest
orthodoxy, Morel establishes as the starting point of degener-
ation " the combination of the new conditions brought about
by the original fall.'* Then he studies the role heredity plays •

— a theory already confirmed in relation to the transmission
of crime by Lucas, in his " Treatise on Natural Heredity " *

— in the genesis and development of the deviation of the
primitive type; and, tracing through the generations the
evolution of the psychopathic process, succeeds in estab-
lishing for the first time the relation between criminality
and degeneration. " The strange and unknown types which
people our prisons," said he, " are not so strange and
unknown to those who study the morbid varieties of the
human species from the double point of view of the psychic
and moral condition of the individuals that compose them.
They personify the various degenerations of the species,
and the evil which produces them constitutes for modern
society a greater danger than the barbaric invasion did for
the old."

Not less noteworthy among the precursors of criminal
anthropology is Despine, the author of " Natural Psychology,
an Essay on the Intellectual and Moral Faculties in their
Normal State and Abnormal Manifestations in the Insane

1 Traitt de V her edit naturelle, Paris, 1847.

8 MODERN THEORIES OF CRIMINALITY [§ 3

and the Criminals." 1 " His name," says Francotte,2 " ought
to occupy a prominent place. The object of his investigations
was, above all, the psychological side of the criminal; for,
according to him, the habitual criminal suffers a moral anomaly
characterized by the absence of remorse."

In the meantime, psychological studies of the criminal were
progressing in England, and we have Clapham and Clarke's
" The Criminal Outline of the Insane and Criminal," London,
1846; Winslow's " Lettsonian Lectures on Insanity," Lon-
don, 1854; and Thompson's " Psychology of Criminals,"
London, 1870; and " The Hereditary Nature of Crime," in
the " Journal of Mental Science," October, 1870. After them
we come to Maudsley, one of the most remarkable names
in contemporary mental science.

The most characteristic features of Maudsley's theory *
are the diagnosis of the criminal as morally insane, and the
existence of a vast middle zone between mental disease and
delinquency.

Pritchard was the first to employ the phrase moral insanity 4
to designate a psychic overthrow falling upon the emotional
sphere, and consisting in the benumbing or the deprivation
of the moral sense. It is the rational or emotional monomania
of Esquirol, the instinctive or the impulsive of Morel, the
insanity of action of Brierre de Boismont, the mania of char-
acter of Pinel, the lucid insanity of Tr61at, and the insanity
with conscience of Baillarger. In short, it is a peculiar con-
dition in which the intellectual faculties are not affected,
but remain intact; hence, the appellations lucid, with con-

1 Psychologic naturelle, essai sur les facultes intellectuelles et morales
dans leur etat normal et dans leurs manifestations anormales chez let
alien** et chez lea criminels, Paris, 1868.

1 U Anthropologie criminelle, Paris, 1891, Introduction.

1 Cf. Mental Responsibility, London, 1873.

4 A Treatise on Insanity, London, 1835.

§4] MODERN THEORIES OF CRIMINALITY 9

science, without delirium, rational. The alteration or the
deprivation falls upon the emotional or the affective faculties.
The idea seems altogether of English origin. Franzolini tells
us that, in the 16th century, the Scotchman Thomas Aber-
cromby, physician of James II, spoke in his " Treatise on the
Mind " (1656) of moral insanity, " in which all the upright
sentiments are eliminated, while the intelligence presents no
disorders." He showed by long psychologic analyses how the
influence of the moral sense upon conscience can be altered
or lost without disturbing the intelligence.1

With Maudsley, moral insanity assumes a special character
through the addition of another theory: the borderland or
the middle zone theory. Between crime and insanity, says
this writer, there exists an intermediate zone, in one of whose
borders one observes a little insanity and much perversity,
while in the other the contrary takes place, namely, less
perversity and more insanity.

Section 4. (3) STATISTICS.

Quetelet.

Meanwhile, the science of statistics was being formed.

Social Physics, as Quetelet calls it, anticipating Comte who
reserved it for his sociology, ascertained, from its very be-
ginnings and with all its graphic procedure, a general European
fact, namely, the increase of crime in the form of relapse,
which was able to suggest the idea of an incorrigible criminal ;
and, at the same time, the phenomena of regularity in crime
with their relation to social facts, which suggested the possi-
bility of probable laws for crime and vice analogous to those
which for the first time had been enacted for economical
relations.

1 7 giudizii sullo stato mentale alia Corte d'Assise e la Giuria supte*
toria, Venice, 1877.

10 MODERN THEORIES OF CRIMINALITY [§ 5

Quctelot himself (1796-1874), whom we can consider the
first social criminologist, pointed out some of these laws,
especially that called thermic law of delinquency, according
to which crimes of blood are prevalent in the south and those
against property in the north. It was the first expression of
the theory of physical factors developed later by criminal
anthropology. He went so far as to say: " Society prepares
crime; the criminal becomes its executive.'* 1

II.

THE THREE INNOVATORS.

Section 5. (i) CESARE LOMBROSO.
1836-1909.

Between 1871 and 1876 there began to appear in Italy the
studies on the male offender by an original physician, Dar-
winist from the very start, Cesare Lombroso. Travelling
through Italy in 1869, Emile Laveleye noted this in his diary:
" There has been introduced to me in Milan an unknown young
scholar, Dr. Lombroso. He spoke of certain anatomical signs
by which he can recognize criminals. What a useful and
convenient discovery for committing magistrates ! " " Mr.
Laveleye," says Tarde, in recording the first allusion to a
name that was destined to become famous, " writes four or
five lines more about him and then stops." 2

In fact, who was there at the time that expected more
ideas on the subject?

Nevertheless, these ideas were to be found in the environ-
ment. The causes that led Lombroso to their discovery are
the same as those which his school finds in every human

1 Pkytiqve Sociale, 1869.

* A propos du Congrte de Gtntoe; a discourse ddivrrnl before th«>
General Prisons Congress, November 18, 1896; Archives d'Anthropo-
logit cnmineUe, May, 1897.

§ 5] MODERN THEORIES OF CRIMINALITY 11

action. Individual, physical, and social factors, heaven and
earth, as Goethe would say, have determined the birth of the
male .offender and of the modern school of criminal law.

The birthplace of this science is Italy; perhaps, as it has
already been remarked, for the same reason that, in the same
country, Beccaria wrote on crimes and punishments; and,
before him, Farinacio, Claro, Marsilio, etc., had treated the
same problem with some degree of continuity as far back as
the great classical jurisconsults.

Moreover, what shall we say of the influence of the social
medium already saturated with the ideas which to-day are
crystallized? To speak of it would be to repeat words already
uttered; but it is important to note the fact, because when
it is a question of science and scientists, there still persist,
even in modern science, the legend of Minerva's birth and a
class prejudice which reduce the role played by the medium
of environment and of the public which compose it to that
played by the Greek chorus around the hero or the genius.

" The Criminal, in Relation to Anthropology, Jurispru-
dence, and Psychiatry," 1 originally a small pamphlet, grew
into a work of three volumes: the fifth and last edition con-
taining also an atlas. In spite of this and other observations,
applicable to all historical events and to be kept in mind in
dealing with them, the above work is the starting point from
which criminal anthropology plunges forth and finds, at the
same time, its most characteristic expression.

His later works " The Female Offender," " Political Crime
and Revolutions," " The Anarchists," 2 and others, show
amplified details of the whole.

1 First edition, 1876; last edition, 1897-1900.

2 La donna delinquent?, prostituta e normale, in collaboration with G.
Ferrero, Turin, 1893; 11 delitto politico e le rivoluzioni, in collaboration
with R. Laschi, Turin, 1890; Gli Anarchici, Turin, 1894.

The complete account of Lombroso's works may be found in the
book prepared by his daughters Paola and Gina: Cesare Lombroso,

12 MODERN THEORIES OF CRIMINALITY [§ 5

Lombroso begins by discussing what has been called the
embryology of crime, which constitutes an indispensable first
chapter in the monographs of the school.

The author studies crime among the lower organisms,
detecting it even in the vegetable world.1 Then he studies
it among the animals, and finally in the human realm; in
the infancy of the individual and of the species, in the child
and the savage. Later, as the book develops, there appears
an ethical variety of the genus homo, the male offender, dis-
tinguished by numerous characteristics which constitute the
type.

The conclusion that can be drawn from the data accumu-
lated by the author is the indissoluble relation between
certain deeds which man calls crimes and all living organisms
in an indifferent and normal condition. The activity dis-
played in the form of crime bears these marks in both the
vegetable and the animal worlds, and would bear them even
among men if one did not see in the latter another element
of the historical development of their nature, namely, the
genesis and development of the moral sense; after which,
what could be called physiologic criminology — being a
stage of the normal process of the organisms characterized
by the absence, also normal, of the fundamental altruistic
sentiments — becomes pathologic and abnormal. But this
growth and correlative elimination do not always take place,

Turin, 1906. As for his personality, consult the various writings con-
tained in a volume published on the occasion of his scientific jubilee,
entitled : L'opera di Cesare Lombroso nella Scienza e nelle sue applicazioni,
Turin, 1906.

1 Enrico Ferri, in his " Omicidio nell Antropologia Criminate,"
Turin, 1895, has rectified the illustrations proposed by Lombroso as
manifestations of crime among vegetables (insectivorous plants, etc.).
He attributes them not to delinquency which supposes an analogy
of species between the victim and the author of the assault, but to the
Uw of the struggle for existence.

§ 5] MODERN THEORIES OF CRIMINALITY 13

either through causes connected with the organism itself
which is paralyzed in its evolutionary process or stricken
and torn by atavistic and pathologic heredity, or through
the influence of the social medium that surrounds the in-
dividual; a medium, which weighing unconsciously upon
him like the atmosphere, hinders him without his own co-
operation. The abnormal continuance of the criminal physio-
logical condition by means of many physical and social causes
forms, in short, the criminal with his manifold epileptic,
alcoholic, hysteric, and other varieties. Our author has
studied almost exclusively the varieties that, in his opinion,
are due to individual factors.

The first explanation for the phenomenon of congenital
criminality was found by Lombroso in atavism.

Literally speaking, atavism means hereditary transmission
from forefathers or remote ancestors. Not from Adam and
Eve to be sure; the general conception of man and his origins
has radically changed, thanks to the theory of transformation
which replaces the first couple stained by one original sin
by the primitive man scarcely freed from the animality of
the anthropoid.

Atavism, then, is the tendency of living beings to return
to a distant type from which intermediate generations have
made them deviate. Unlike direct heredity, with which,
however, it preserves the stability of the species, atavism
is characterized by the reappearance of unusual traits in
most recent ancestors, which were characteristic of that
distant race.

The criminal goes back to the savage type. In order to
reach the hypothesis for his regression, the following process
seems to have been followed :

a. Organic and psychic comparison of the present criminal
with the savage and the primitive man;

14 MODERN THEORIES OF CRIMINALITY [§ 5

b. Accumulation of documents showing that with them
" crime is not the exception, but the general rule."

a. When the comparison is undertaken, we find that in
the criminal there are numerous anatomic traits, especially
craneologic, that suggest the structure of primitive men and
even of the leading mammals. These anatomic traits are:
the narrowness of the forehead; an exaggerated development
of frontal sinuses; a great frequency of median frontal sutures,
of the median fossa of the occipital crest, and of the Wormian
ossicles; abnormal development of the cranial vault; dis-
proportionate development of the mandibles and cheek-
bones; prognathism; obliquity and great capacity of the
occipital orbits and foramen, etc. Among the physiologic
traits we may mention: obtuse sensibility, invulnerability
and in consequence longevity, absence of vascular reactions,
left-handedness, etc. The psychologic traits are: moral and
affective insensibility, idleness, absence of remorse, want of
foresight, etc. And, finally, among the social traits, we find
tattooing, language, etc.

b. On the other hand, the delinquency of the savage and
of primitive man is demonstrated: (a') by physiologic argu-
ments that prove the absence in the beginning of any distinc-
tion between the idea of action and that of crime,1 the fre-
quency of actions which, on account of numerous synonyms,
we call crimes,2 and the impure origins of some institutions ; 3
(b') by mythologic arguments, like the existence of gods and
goddesses for every offense and for all crimes ; (c') by historic

1 Crime from the Sanskrit karman is equivalent to action, according
to Pictet; guilt (culpa) from the Sanskrit halp, hlrp, meaning (odo,
to execute, acording to Pictet and Pott; faccinus from facere, etc.

ret says that in Sanskrit there are about a hundred roots ex-
pressing the idea of killing and wounding, without counting the
ondary divergencies.

1 According to Lombroso, all languages agree in pointing to robbery
and murder aa the first methods for acquiring property.

§ 5] MODERN THEORIES OF CRIMINALITY 15

arguments found in the copious material of description of
savage tribes and races, collected by travellers and scientists
who show them to us living a life of crime with indifference
when not as a display of heroism.

In short, according to all these arguments, crime resembles
a remote anachronism; the criminal, that is, the man in
whom heredity goes, back to his first ancestors, leaves a gap
which in other beings is filled by the historical product of
moral selections transmitted by later generations.

The type of the born criminal was a reproduction of the
rude morphology of the savage. From the deformed cranium
down to his tattooed skin, all pointed to that. There remained,
however, a few stigmata, crept into the type, which could not
be called atavistic. According to Lombroso, it was only
later that he saw that these characteristics coincided with
those attributed to the morally insane and were connected
with other pathologic and not atavistic peculiarities. It
was only when preparing his study on the epileptic criminal,
and at the third edition of his book, that he saw that this
family group could perfectly include the born criminal, a
discovery that enabled him to solve all difficulties. Never-
theless, in his opinion, atavism did not fail; for there does
not exist in pathology any other infirmity more calculated to
fuse and combine morbid and atavistic phenomena than epi-
lepsy. The epileptic, for instance, barks, eats human flesh,
etc. ; two marks of prehistoric and savage cannibal atavism.

The frequency of crime among epileptics was well known and
had been remarked by all writers. Thus, according to Maud-
sley, the most diverse cases of homicidal impulses are con-
nected with epilepsy. Burlureaux writes: " When an inex-
plicable crime, completely out of harmony with the culprit's
antecedents who is not insane, is committed with unusual
rapidity, ferocity or multiplicity of extraordinary aggressions,

16 MODERN THEORIES OF CRIMINALITY [§ 5

foreign to the usual mechanism of crime and without com-
plicity; when the culprit has lost all remembrance and seems
a stranger to the act, or when he has only a vague conscious-
ness of the deed and speaks of it with indifference as if another
had committed it; then it is necessary to look for epilepsy." *

It would not be difficult to look for epilepsy in these
symptoms so characteristic of the grand mal; but, side
by side with them, there exist other marked forms dis-
covered by modern science, which embrace even the state of
temporary insensibility, want of foresight, or the short choleric
and wrathful attack, which are the psychic equivalent of
muscular epilepsy. If the reader wished to know, definitely,
what this morbid state is, we would answer that only a few
years ago it would have been possible to define it, but that,
to-day, like degeneration and neurasthenia, it represents a
protean body personifying for some the entire mental
pathology. Being the effect of the irritation of the cerebellar
or of the medullar cortex, its reaction is characterized by a
rapid and excessive discharge of latent forces in intermittent
and unstable impulsions.

It is exactly in this very wide sense that Lombroso considers
epilepsy as forming with atavism the substratum upon which
is based the criminal world.

I sum up my ideas, says he, for greater clearness, in the
following graphic lines:

'1. Occasional criminal

2. Emotional criminal _______

3. Born criminal ______ —

4. Moral insane

5. Masked epileptic ___ _

His latest theory is composed of three chief factors: atavism,
1 Cf . the article Epileptic in the Dictionnaire des Sciences medicate*,

§ 5] MODERN THEORIES OF CRIMINALITY 17

moral insanity, and epilepsy; hence its name of triple theory.
A German criminalist, Nacke, has summed up Lombroso's
latest position with sufficient exactness. His point of view,
says Nacke, is summarized in the following conclusions:

(a) the criminal, properly speaking, is born so;

(b) the same as the moral insane;

(c) on epileptic basis;

(d) explicable chiefly by atavism; and

(e) forms a special biologic and anatomic type.1

And now we come to the theory of the type of the born
criminal, which for many embraces all criminal anthropology.
The reason for this is found in the fact that, in its gradual
process not unlike other subjects, this science, from the book
and the review down to the daily paper and anonymous
oral literature, as it reached the different social strata repre-
sented by these mediums, has lost so much of its contents as
each of them has been able to assimilate, until at last it is
reduced to the romantic and extraordinary form of the type
of the born criminal. Criminal anthropology has, in a short
time, reached people and regions that science could not have
reached if we consider the latter in all its classical apparatus,
and has given rise to so many discussions that if, for instance,
Flaubert had written Madame Bovary in 1887 instead of
1857, Mr. Homais and the curate of his town could not have
discussed any other subject but Lombroso and his theories.

Considering the nature of this work, it would be indeed
impossible to give a full account of the traits, marks, and
stigmata of the type of the born criminal. Impossible, be-
cause it would presuppose the most complete and minute
autopsy in which bones, viscera, and tissues should be ex-
amined one by one in their respective relation, and the keenest

1 Lombroso and Modem Criminal Anthropology, in the Zeitschrift
fur Kriminalanthropologie, Berlin, 1897.

18 MODERN THEORIES OF CRIMINALITY [§ 5

observation of the whole physiology and mechanism of life
and of psychology, sounded and estimated by means of all
modern procedures. The criminal type, as the scholastics said
of the soul, is in its entirety in the whole body and in each of
its parts.

The history of its elaboration, then, can be considered
from the standpoint of the method adopted for its construc-
tion, and from that which refers to the nature of its char-
acteristics.

As for the method, we can easily perceive that in the
beginning it consisted in the mere accumulation of all that
appeared abnormal and teratologic, namely, the criminaliza-
tion of every unusual trait, which, as a result, gives us a type
of the most abstract nature. The period of selection follows
with great delay. With the adoption of better methods
which made possible the grouping of the more evident and
frequent characteristics and the elimination of not a few
incompatibilities, the type dissolves itself into different types,
especially physiognomical, of assassins, swindlers, thieves,
etc. Thus the Galtonian photograph of some criminal skulls
shows, according to Lombroso, in the case of assassins, de-
veloped frontal sinuses, very large cheek and jaw-bones,
large and far apart orbits, facial asymmetry, the ptelea-
shaped type of nasal cavity, and the lemuridous appendix of
the jaw-bone. The skull of swindlers and thieves offers
less visible results; but the living head, studied by Garofalo
and Ferri more than by Lombroso, presents a contrast between
the extreme mobility of the thief's whole face and the im-
passible and cold fixity of the assassin's.

If from the method we pass to the nature of the characteris-
tics classified by Lombroso, we find that all writers continue
to point out the progress made not long ago in the fields of
anatomy, physiology, and psychology.

§ 6] MODERN THEORIES OF CRIMINALITY 19

In the field of anatomy, the type presents a plastic picture
in such relief and so sensible to the five senses as mother
nature made them, that, without instruments to render it
more keen and sensitive, the eye alone could discover the
picture; and not alone the clinical eye of the scholarly anthro-
pologist and of the old magistrate, but also that of a child
and of the most ignorant in science.

Later, when gross anatomy is completed by histology, the
type shrinks, evaporates, is entirely lost under the action of
well-defined factors, and we have what the discoverer him-
self has called " delinquents of genius," without hindering a
certain tendency in the type to reestablish itself enveloped
in characters of opposite biological significance (prophetic,
for instance, and not atavistic).

In spite of all, we can affirm that the anatomic features
continue to characterize the Lombrosian theory, although
not as in the past by exclusion or greater significance, but by
their mere presence, due perchance to the integral study of
the criminal which the author has been obliged to make.

Section 6. (2) ENRICO FERRI.

Lombroso's discovery gave Enrico Ferri the point of view
for his " New Horizons of Criminal Law and Penal Pro-
cedure." 1 His work in the modern science began, however,
a few years before by a denial of free will and the formulation
of the theory of responsibility.2 After that his works multiply.
We will mention only " The Homicide in Criminal Anthro-
pology," " The Criminals in Art," and " Socialism and
Criminality." 3 Most of the theories that to-day are complete

1 Nuovi orizzonti del diritto e procedure, penale, Bologna, 1S84; fourth
edition under the title of Sociologia criminate, Turin, 1900.

2 Teorica dell' imputabilitd e la negazione del libra arbitrio, Florence,
1878.

3 L'omicidio nell' Antropologia criminate, Turin, 1895; I delinquents
nell' arte, Genoa, 1896; Socialism) e criminalita, Turin, 1883.

20 MODERN THEORIES OF CRIMINALITY [§ 6

and crystallized take their rise from these books which repre-
sent the application of positivistic philosophy to crime and
punishment. In them we find the theory of criminal factors,
which is the key to the modern theories of criminality; also
the most largely adopted classification of criminals, the penal
function conceived in the social body defending itself, the
penal substitutes, the transformation of criminal jurispru-
dence into sociologic science, forming thus a complete organism
so readily adaptable to the medium, that it appears to be the
winner and favorite in the vital competition of modern
theories.

We shall begin with the theory of the factors.

In " Studies on Criminality in France from 1826 to 1878," 1
Ferri states for the first time the theory as follows: " Crime
is the result of manifold causes, which, although found always
linked into an intricate net-work, can be detected, however,
by means of careful study. The factors of crime can be
divided into individual or anthropological, physical or natural,
and social. The anthropologic factors comprise age, sex,
civil status, profession, domicile, social rank, instruction,
education, and the organic and psychic constitution. The
physical factors are: race, climate, the fertility and disposition
of the soil, the relative length of day and night, the seasons,
meteoric conditions, temperature. The social factors com-
prise the density of population, emigration, public opinion,
customs and religion, public order, economic and industrial
conditions, agriculture and industrial production, public
administration of public safety, public instruction and educa-
tion, public beneficence, and, in general, civil and penal legis-
lation.

To these factors we could add many others without ever
exhausting them, since they include all that the Universe

1 Studi tulla criminality in Francia dcil 1826 al 1878, Rome, 1881.

§ 6] MODERN THEORIES OF CRIMINALITY 21

contains, not omitting a word or a gesture. What we must add,
however, is the fact that as a whole they determine the law
of criminal saturation: " Just as in a given volume of water,
at a given temperature, we find the solution of a fixed quantity
of any chemical substance, not an atom more or less, so in a
given social environment, in certain defined physical con-
ditions of the individual, we find the commission of a fixed
number of crimes."

Ferri's theory is the most scientific production of modern
studies. " Crime," says he, " is a phenomenon of complex
origin and the result of biological, physical, and social con-
ditions. Certainly, the dominant influence of this or that
factor determines the bio-sociologic variety of the criminal,
but there is no doubt that every crime and every criminal
is always the product of the simultaneous action of biological,
physical, and social conditions." In order to reach this
position he has passed through two phases, representing as
many oscillations: first, through that of the individual factors,
as when in his " New Horizons " he wrote, to quote only one
of many analogous sentences, that " without special individual
inclinations, the external impulses would not be sufficient; "
and then through that of the social factors, at the time of
his conversion to socialism, of which conversion and influence
on criminology we shall speak when we treat that subject.

Mention has been made of the bio-sociological varieties of
criminals. What are they?

As a starting point for the classification, Ferri makes use
of the a priori existence of two great classes sufficiently
known by all and which can serve as a starting point for
further distinctions. These are the classes of habitual and
occasional criminals.

"Above all," says Ferri, "from the group of habitual
'criminals there stand out the victims of a clear, evident, and

22 MODERN THEORIES OF CRIMINALITY [§ 6

common mental alienation which causes their criminal
activity. In the second place, even among habitual criminals
not insane, we find a class of individuals, physical and moral
wretches from infancy, who live in crime from a congenital
necessity of organic and psychic adaptation and who are
nearer to the lunatics than to the sane; a class which is dis-
tinguished from another class of individuals living in crime
and for crime by a dominant complicity of the social environ-
ment in which they were born and raised, and also by an
unfortunate organic and psychic constitution; individuals
who, undoubtedly, once having reached the chronic state of
crime, are incorrigible and unfortunate as the other class of
habitual criminals, but who, before falling from the first crime
to the final abject condition, could have been rescued by
preventive institutions and by a less vitiated environment.

" On the other hand, in the group of occasional criminals
we have a special category distinguishable less by a variety of
characteristics than by the typical exaggeration of their more
or less varying organic and psychic traits. In all these it is
the impulse of opportunities more than the innate tendency
that determines the crime. But, while in most of them the
determining opportunity is a sufficient and almost common
stimulus, in others it is the extraordinary impulse of a passion,
a psychologic storm, that alone could attract them to crime;
persons, who, as if completing the circle, as it has already
been remarked by Delbruck and Baer, approach very closely
the group of the criminal lunatics, if not through a permanent
form of insanity at least through a psychic disturbance which,
more or less latent before, breaks out at last into criminal
transgression.

" Therefore, all criminals can be classified under five
groups which I have called : a. Criminal lunatics; b. Criminals
born incorrigibles; c. Habitual criminals, or criminals from

§ 6] MODERN THEORIES OF CRIMINALITY 23

acquired habit; d. Occasional criminals; and, e. Emotional
criminals/'

With classical illustrations from universal literature, as,
for instance, the Shakspearean criminals Macbeth, Hamlet,
and Othello, perfect types of the born criminal, the criminal
lunatic, and the emotional criminal, the author has again
made use of the above classification in his " Criminals in
Art," a valuable monograph purporting to show the empirical
and unconscious origins of criminal anthropology in art. We
find it also in his voluminous and remarkable work " Homi-
cide in Criminal Anthropology," stated more extensively and
supported by numerous observations, although limited to
a single form of delinquency.

The first and the most salient and discussed class is that
of the born criminals. According to Ferri, race and tempera-
ment combined with degeneration are the chief factors of this
inborn tendency; the type, especially the physiognomic and
imitative one, constitutes its visible mark. An unfortunate
hereditary state suppresses or atrophies in the born criminal
his moral sense without altering in many cases the intellectual
faculties, which can be better than the average. Under the
pressure of the social environment, there develops in him an
enormous aggressive power, which is not always ferocious,
brutal, and violent; for, as according to Spencer the different
classes of society from the warrior to the merchant find
themselves in the course of transformation, so delinquency
is losing those traits and appears shrewd and voluptuous with
all the characteristics of the modern phases of culture.

The difference between the born criminal and the criminal
lunatic, which forms the second class, is found in the insanity
of the latter. It is better to adopt the term lunatic for this
class, so as to distinguish it from the congenital moral insane,
as he is called. A kind of dual personality constitutes the

24 MODERN THEORIES OF CRIMINALITY [§ 6

chief characteristic of this class of criminals. In fact, " the
chief trait of insanity," says Taylor,1 " is a great change of
.character; a man affected with mental alienation is different
than he was before." " He is not the same," adds Griesinger,2
44 his former ego has changed and becomes estranged from
itself." Legrand du Saulle writes: 3 44 Man begins to be ill
when he begins to differentiate himself from himself." Mauds-
ley has well described this process, of which even every day
speech gives a clear idea when it uses the word alienation.

The crime of the lunatic is characterized by its marked and
startling forms: violent delirium, ferocity, multiplicity of
aggressions, unusual suddenness. It has been maintained for
a long time that for him crime is not a means as in the other
criminals but an end; but the range of this observation
diminishes from day to day through the psychologic study
of the madman's strange conceptions, his latent impulses,
hallucinations, etc. In most cases there exists no premedita-
tion, although in others he goes so far as to plan an alibi.
Only in a limited number of cases we find accomplices; but,
on the other hand, these cases often belong to the collective
form of delinquency, called the criminal mob, which surpasses
the first in frequency and extension. The victim belongs
either to the social environment close to the lunatic, like
family, friends, companions; or to the most foreign to him,
like the first person he happens to meet. The space inter-
vening between the two extremes is hardly touched upon by
statistics. Finally, his attitude after the deed is one of stupor
or imbecility, indifference, and forgetfulness.

We find a marked analogy between the lunatic and the
emotional criminal. Like the lunatic the emotional criminal

1 Quoted by Joly, Le crime, p. 337.

2 TraiU de* maladies mentales, Paris, 1865, p. 136.
• Trait* de Medicine, legate, Paris, 1886.

§ 6] MODERN THEORIES OF CRIMINALITY 25

has no accomplices, does not premeditate his crime, and his
victim is generally on intimate terms with him. In him also
personality suffers a sudden paroxysm. If to-day we speak
of the madman's lucid intervals, why not say, then, in com-
paring the two classes, that the emotional criminal is a sane
and normal man subject to momentary paroxysms and
intervals of insanity? Paroxysm characterizes him more and
better than emotion. It is only when the latter manifests
itself in an acute manner that we have the real emotional
criminal. Chronic emotion constantly renewed and repeated
forms the basis of an altogether different delinquency. We
must also remark that most crimes committed by emotional
criminals are numerically few in comparison with those of
other classes, and that they are due to the group of the so-
called noble emotions.

Anatomy discovers nothing abnormal in this class of crimi-
nals, sung and glorified at times as a source of poetry. Their
physiological characteristics seem to be only a certain nervous
debility and excessive sensibility. Their face and their body
are not different from those of the anti-criminal type. Es-
pecially in the political criminal, the nobler the motive for
the crime the more noticeable are these characteristics.

In order to detect the emotional crime one must study the
motive. Between the two there exists a real proportion.
Moreover, the motive is generally of very recent date. When
it is not, the time that separates it from the deed is filled by
an extraordinary agitation. Yet, during this interval, nothing
is premeditated, no weapon is chosen, and no accomplice is
sought. The crime takes place during a real psychologic
storm, says Fern, in full daylight, before witnesses, and in
public places. Usually, only one blow is struck, since emo-
tional crimes are almost always against the person; but, at
times, its fury and multiplicity remind one of the great

26 MODERN THEORIES OF CRIMINALITY [§ 6

epileptic crimes. The analogy, however, soon disappears;
for there comes a sudden reaction, and the culprit passes
through a variety of sensations, ranging from instant suicide
to an immediate acknowledgment of the crime. Finally,
the desire for punishment, repentance, and reform complete
the history of the crime.

The two classes of occasional and habitual criminals are
difficult to define. They are distinguished from each other so
far as two things, whose difference is found in the greater or
less extension of a third, can be distinguished. According
to Ferri, the former class has no other distinct characteristic
than less relapse and less precocity. The general impression
which I am able to gather is not less volatile and unstable. I
would say that, while with habitual criminals it is the criminal
himself who acts upon the environment in order to produce
and repeat the opportunity, with the occasional criminal it
is the opportunity which acts intermittingly and extraordi-
narily upon the criminal in order to cause the crime.1 Here,
then, we confront the serious psychological problem of the
role that opportunity plays in the genesis of crime. According
to the old saying, it is the opportunity that makes the thief,
or must the thief possess a natural latent tendency for theft
in order to take advantage of the opportunity?

And now, after having by these studies revealed a universal
coercion in the cause of human deeds, we may ask: why
should the penal function be maintained? E pur si muove;
perhaps it will be even more necessary and more energetic,
not as a means of retribution and reward, but as a necessity
and defense.

It Is not a question of defense, as Beccaria and the phil-
anthropists imagined, upon the basis of the social contract

1 I am pleased to see this observation repeated almost literally by
Vargha in Die Abschaffung der Strafknechtschaft, Graz, 1895-1896.

§ 6] MODERN THEORIES OF CRIMINALITY 27

theory. The ruling conception, that makes of the human race
a living organism, above man, and the last in complexity
in the zoologic scale, makes the social defense appear as a
natural movement corresponding to the irritability of the
lower animals and to the reflex action of those which have a
differentiated nervous system so perfected as to correspond
to the high nature of man.

Of this we shall speak more at length in the chapter devoted
to Penology. But it is necessary to mention at this point a
new idea.

To the elementary defensive methods against attack, there
are added, in an advanced civilization and as a matter of
conscience and reminder, other methods destined to avoid
possible future crimes, thus rendering punishment unneces-
sary in the long run. Hence, Ferri calls them penal substitutes.
They would constitute a body of physical, individual, and
social correctives against their corresponding factors. As
examples of substitutes we may mention: " Free trade,
which prevents exceptional high prices of food to which are
due many criminal agitations; abolition of monopolies, which
would prevent smuggling and other kinds of offenses; sup-
prcssion of certain taxes, which constitute a constant source
of agitation; the substitution of gold and silver for bank-notes,
for, counterfeit bills being more difficult to detect, it would
decrease the number of forgers; cheap workmen's dwellings;
preventive and auxiliary institutions for invalids; popular
savings' banks, which, by bettering the condition of the poor,
would cause a diminution of crimes against property; the
construction of wide city streets and better lighting, which
render thefts and other offenses more difficult; the spread
of the Malthusian law, which would lessen the number of
abortions and infanticides; better civil laws on inheritance,
on marriage, on the adoption of natural children, on the

28 MODERN THEORIES OF CRIMINALITY [§ 7

investigation of paternity, on the obligation of making repara-
tion for broken marriage engagements, on divorce, etc., all
excellent antidotes against concubinage, infanticide, adultery,
bigamy, wife murder, and offenses against chastity; better
mercantile laws on the responsibility of the directors of a
company, on the procedure of failures, on rehabilitation, etc.,
thus rendering bankruptcy less frequent; oversight of the
manufacturing of weapons in order to reduce the use of these
instruments of destruction; courts of honor against duelling;
the suppression of pilgrimages; the marriage of the clergy;
the suppression of monasteries; the abolition of many holidays;
physical exercises; public baths; theatres; foundling homes;
the suppression of immoral publications and accounts of famous
trials; refusing the young admission to police-courts and assizes,"
etc.

Section 7. (3) RAFFAELLE GAROFALO.

Not long after Fern's "New Horizons," there appeared
Garofalo's " Criminology," 1 which, by its juridical aspect,
becoming a magistrate of the author's caliber, completed the
works of the New Science; works which fall into a spon-
taneous division according to their different points of view.
With the anthropologist Lombroso, the sociologist Ferri, and
the jurisconsult Garofalo, the school of criminal anthropology
can be considered as fully established. Hence, one of its
critics has called these three men evangelists and their works
yoyprh. From that time on they are always mentioned in a
kind of trinity, a little divided at times only by Garofalo's
political and penal conservatism.

The first theory we owe to Garofalo is that of the natural
crime. At the beginning of his investigations, the author
finds this term so much forgotten, that " many, in the presence

1 Criminalogla, Turin, 1885; second edition, Turin, 1889.

J 7] MODERN THEORIES OF CRIMINALITY 29

of the recent investigations of Despine, Maudsley, and Lom-
broso, believe them in good faith to be doctrines that will
never find their way into legislation. ..."

In order to correct this neglect, Garofalo states the problem
of natural crime as follows: " If, among the crimes and
offenses of our modern laws, there are some that have been
considered punishable acts at all times and in all places . . . '
It would be useless to pretend to make a catalogue of deeds
which are universally hateful and reprehensible. Our mind
is immediately filled with the sad memories of atavism. But
will it be also impossible to define natural crime? In order
to succeed we must change method. It is necessary to forego
the analysis of acts, mere variable and deceiving forms, and
undertake the analysis of sentiments. At this point the
author begins a study of the evolution of the moral sense, and,
influenced by Darwin and Spencer, he ends with this formula
for natural crime: "an offense against the fundamental
altruistic sentiments of pity and probity in the average measure
possessed by a given social group." He completes the theory
with a table of the natural forms of delinquency and with
another of the forms which, in the antinomy that can arise
from that appellation, could be called artificial or positive.
" Undoubtedly the legislator must punish both classes of
crimes alike, but true science is interested only in the first,
namely, the natural forms of delinquency."

The natural crime theory, attained by modern methods
but based on old ideas, did not please at first either classical
or positivistic scholars. In fact, it reminded one of the old
wine in new bottles, or, less metaphorically, of the poet's
words :

" Sur des pensiers nouveaux faisons des vers antiques."

It seemed as if old thoughts were being expressed in modern
verses. The way in which the question was stated and in

30 MODERN THEORIES OF CRIMINALITY [§ 7

part the method of solving it, has, on account of the vagueness
of Garofalo's artificial or positive crime, more than one feature
in common with the dualism of the Roman jus gentium and
jus civilis. Natural crime seems, then, the crime common
to all peoples; while positive crime is that which is peculiar
to each nation. This distinction, flavoring so much of the
classical, resembles that which we find between crimes for-
bidden because they are evil (mala in se, prohibita quia mala)
and those which are evil because they are forbidden (mala quia
prohibita). Finally, it reminds one of the recta ratio, diffusa
in omnes, constans, sempiterna; and of the innate principles
of justice engraved in the human heart. What makes, then,
classical criminologists oppose a theory of such origin? It
is because, after so many points of contact, the theory proceeds
in an increasing parabola. The old principles of morality
and justice undergo so many amputations that the decalogue
is reduced to only two commandments: thou shalt not kill
(pity) and thou shalt not steal (probity). Moreover, it is
not God who gives them but it is humanity itself that elabo-
rates them, not at a single time, but through an evolutionary
process. The recta ratio ceases to be the patrimony of all men
and becomes the property of civilized men alone.

The positivists on their part reject natural crime, not
because it is a category that does not exist, but because it is
the only one. " Every attack against the positive laws of
a country " (all natural ; since what is there of unnatural
or supernatural in nature?) — " just as any obscure lawyer
would say " : such is the modern notion of crime.

Nevertheless, the critique, after having had its say, cannot
help recognizing in Garofalo's theory of natural crime one of
tin- m«»i intrrrstiii;' product ions of modern criminology.

This theory governs all of Garofalo's remaining views.
To it we owe the classification of criminals into two groups:

§ 7] MODERN THEORIES OF CRIMINALITY 31

the murderers (offenders against humanity) and the thieves
(offenders against property). The author has added two
others: the cynics (for sexual criminals) and the violent
criminals. We will explain this division by a modern com-
parison. He refuses to consider the moral sense as a com-
pound of reduced elements. The first three classes are, ac-
cording to Garofalo, affected by a real moral Daltonism; the
murderer, the thief, and the cynic are beings deprived of a
sense of respect for life, for property, and for the honor of
others. The violent criminal, in the confused reaction of his
movements, is equivalent to the totally blind.

The cause of both groups is an anomaly, not pathological,
— the author is very careful to distinguish anomaly from
infirmity — of the moral sense resembling an ethical degenera-
tion through retrogressive selection, which would make
man lose his best qualities acquired slowly through a long
evolution.

With this as a basis, no one better than Garofalo has worked
the hypothesis of the born criminal and of the rejection of
individual factors to its last possible conclusions. In his
" Criminology " society sees in crime only two elements,
without which it could not take place, namely, the oppor-
tunity and the victim; the former offering the mere possi-
bility of the deed, and never acting as collaborator or pro-
tagonist. The chapters devoted to some social influences so
hopeful as education, religion, and laws, present education
disarmed in the presence of character which, once fixed,
remains unalterable like the form and the features; religion
powerless to check criminal impulses; the laws exercising a
very small influence upon the social body and receiving
from it a great deal, so that they become protectors of crime.

The theory of repression fills the greater part of Garofalo's
book.

32 MODERN THEORIES OF CRIMINALITY [§ 8

This theory is governed by the law of selection, that is,
elimination in its medium. By this process society must pro-
duce by artificial means a selection analogous to that which
takes place spontaneously in the biological domain, that is,
by putting to death by the hundreds the criminals considered
absolutely incompatible with all environment and social
group, and by expelling from the country or from a profes-
sional or functional group those in whom the lack of pity
or probity is less marked. Side by side with this process of
elimination applied in its absolute and relative forms, there
remains the reparation for the harm done, which must be
made by the perpetrators of crimes who do not disclose any
marked anomalies of the moral sense.

III.

DEVELOPMENT.
Section 8. (i) NATURE AND GENESIS OF DELINQUENCY.

These ideas broke the equilibrium established thirty years
ago.

Undoubtedly newness is always a very relative conception;
for, from the time of Christ and even before, the human
mind has been searching for it on this earth in vain. Yet, it
is not the less real, if we consider it as the unfolding of germs
planted in times immemorial. It is like the reappearance
of things which were believed extinct.

As we open one of the books on criminal law published after
1880, and compare it with a not much earlier one, we detect in-
deed something new. A peculiar technique established before
by older sciences makes its meaning unintelligible to those
who, until then, had attained renown in the subject of crime
and punishment. Its pages contain prints and engravings,
all the graphic apparatus which was believed to be the Icgiti-

§ 8] MODERN THEORIES OF CRIMINALITY 33

mate monopoly of natural sciences. " Who would have
thought," says Ferri, " that the travels and the discoveries
made in wild countries; the first studies written by Camper,
White, and Blumembach on skull measurements and the
human skeleton; the investigations of Darwin on the origin
of species; those of Hackel and of so many other naturalists
in embryology; and Laplace's hypothesis of the nebulae,"
all of which having found applications in criminology and
furnished points of view for the " New Horizons of Criminal
Law," were to find some day, together with their illustrations,
a place in these books as did before them the pictures, maps,
and all the apparatus of modern social physics.

Thus, a simple indication on the title-page of a book,
announcing illustrations in the text, can serve as a sufficiently
sure sign of the novelty of its spirit and contents. In fact,
that indication points out, according to our way of looking
at the matter, what is the common characteristic of the
modern theories in comparison with the old. It points out
that crime is conceived as the product of all the forces of the
Universe, those of the inorganic or preorganic world as well
as those of the organic, physical, and social world; the product
of physical or cosmic, anthropological or individual, and social
factors as they are called from that time on, and consequently
showing the intervention and the collaboration of all sciences
in one which, until then, existed on mere conceptions.

This same characteristic determines at present the natural
division of the modern theories of criminology; for, as soon
as these were formulated, the relative value and conception
of each group of factors were looked upon by investigators
from different standpoints, so as to produce two great ten-
dencies. The one, by affirming the preponderance of anthro-
pologic factors was called Criminal Anthropology; the other,
leaning toward social factors, took the name of Criminal

34 MODERN THEORIES OF CRIMINALITY [§ 8

Sociology. The physical or cosmic factors did not produce
a third school, which might have been called Criminal Meteor-
ology or Judiciary Astrology; but they were the cause of the
polemic between anthropologists and sociologists. The
influence of these factors, however, is considerable; and, at
times, it seems dominant. Still, Kropotkin exaggerates this
influence when he writes in his " Prisons ": * " By the sta-
tistics of previous years one could foretell with astonishing
exactness the number of crimes to be committed during the
following year in every country of Europe. Through a very
simple mathematical operation we can find the formula that
enables us to foretell the number of crimes merely by consulting
the thermometer and the hygrometer. Take the average
temperature of the month and multiply it by 7; then, add
the average humidity, multiply again by 2 and you will
obtain the number of homicides that are to be committed
during the month." H=t X 7-f-h X 2 ; the operation is not so
easy nor so safe.

This polemic completely fills the history of the modern
theories of criminology. Is the criminal born so, or is he a
product? This is the question, which, after all, is nothing but
the problem of human personality.

The division into anthropological and sociological has been
criticized as being artificial, when in reality it is so only in
as far as all divisions are, as if they inherited an original sin.
It would be more than artificial if we looked at it as an irre-
ducible and constant dualism, forgetting, as is often done,
that the function of limitation which intervenes in every-
thing is not only to divide and isolate, but also to correlate
and unite the elements of any order of things for which
nature never gives any solution of continuity, since it hates
the void and never advances by leaps.

1 Lei prison*, Paris, 1890.

§ 8] MODERN THEORIES OF CRIMINALITY 35

Whether the question is understood this way or not, we
seldom find an investigator who does not adopt the proposed
classification, and does not use it with more or less success.
Does not Ferri himself accept four unilateral biologic and
social theories, basing upon them his own, the only double
bilateral one? 1 And yet, Ferri complained so much against
the critics who " in order to give themselves the easy pleasure
of opposing the ideas of the positivistic school, accuse it of
representing crime, now as an exclusive product of environ-
ment, now as the product of the biologic factor."

Here follows Ferri's classification which has appeared
again in the fourth edition of his " Criminal Sociology ":

Crime is a

( Biological (Albrecht)

( Social (Durkheim)

Organic and psychic (Lombroso). Psy-

Normal

phenomenon.

Biologic abnor-
mality due to

Social abnormal-
ity due to

"Atavism.

chic (Colajanni).

Xeurosis (Dally, Minzloff, Maudsley,

Virgilio, Jelgersma, Bleuler).
Pathology J Neurasthenia (Benedikt, Liszt, Var-

gha).
Epilepsy (Lombroso, Lewis, Ronco-

roni).
Defect of nutrition in the central nervous system

(Marro).
Defect of development of the inhibitory centres

(Bonfigli).

Moral anomaly (Despine, Garofalo).
Economic influences (Turati, Battaglia, Loria).
Juridical unadaptability (Vaccaro) .
Complex social influences (Lacassagne, Colajanni
Prins, Tarde, Topinard, Manouvrier, Raux, JBaer,
Kirn, Gumplowicz).

Biological and social abnormality (Ferri).

It may be that the introduction of the conception of nor-
mality and abnormality to distinguish the various theories is
artificial. The question was raised first by Albrecht at the
Congress of Rome,2 and then by Durkheim in his " Rules for

1 Le crime comme phenombne social (p. 411, second volume of the
Annales de I'lnstitut international de Sociologie, Paris, 1896).

- The morphological position of man among mammals; Human
criminology from the point of view of comparative Anatomy.

ot) MODERN THEORIES OF CRIMINALITY [§ 8

Sociological Classification." 1 After a short period of surprise,
the question, if not forgotten altogether, was at the most
relegated to a very secondary position, but it was to produce
a greater effect when coupled with another great principle.2

Puglia 3 sums up in a few words the nature of the two schools
which we consider the most important. Sociology, according
to him, considers crime a social phenomenon both as to its
causes and as to its manifestations; while anthropology finds
only the expression of crime sociological, its roots are to be
found in biology.

Once, the two schools had local names, and we hear of an
Italian and of a French school of criminology.

Undoubtedly, the origins of the Italian school are char-
acterized by the following four features, which being so clear
and distinct could not help being remarked by all investigators :

(a) the great importance attributed to individual factors,
whose clear outlines somewhat overshadow the social factors ;

(b) the affirmation of a born criminal;

(c) explained by atavism; and

(d) forming a type determined anatomically.

So that the critics of those days could say with Tarde: 4

1 Les regies de la methode sociologique, Paris, 1895.

2 Albrecht considers the criminal a normal being; for, like the
greater part of organisms, he acts through selfishness. Durkheim, on
the other hand, advocates the social normality of crime because he
sees it indissolubly linked to society, forming a factor of the public
safety and an integral part of any healthy social body. And this be-

' cause: (a) it collaborates in the work of selection of the sentiments,
preserving them in the malleable condition necessary to gain new
and more delicate strength; and (b) it permits necessary changes and
transformations, and reduces them to opportunities. Lombroso haa
taken advantage of these ideas in order to write " Les bienfaits du
crime " (in the Nouvelle Revue, 1895).

* Le crime comme phenomene social (p. 455 of the same book, An-
nulet, etc.)

4 Let Ade» du Congres de Rome (in the Archives d' Anthropologie crimi-
January 15, 1888).

§ 9] MODERN THEORIES OF CRIMINALITY 37

" This school, intoxicated with the wine of natural sciences,
lacks the dry, substantial bread of historic and social sciences."
It was in the name of the latter that they arose against the
school.

When the second Congress of Anthropology was held in
the capital of France instead of Italy, the French seized the
opportunity of persistently pointing out the earlier errors
and defects of the Italian school. It was at the stormy Con-
gress of Paris that the battle was fought between French
and Italian criminalists, with Manouvrier and Lombroso
as the chief champions.

These local names have become less marked. On the one
hand, other countries took up the discussion; and on the other,
both French and Italians, especially the latter, have modified
their former characteristics by attenuating them. Ingegnieros
makes a happy remark on this point when he says : "In order
to prove the little value that ought to be attached to the
names of Italian and French school for anthropological and
sociological school, it suffices to remark that one of the fun-
damental works of the Italians (Ferri's) is entitled " Criminal
Sociology," and that the most important publication of
French criminalists (edited by Lacassagne) is called " Archives
of Criminal Anthropology." l

Section g. (A) Anthropological Theories.

Considering them from the point of view of the nature and
genesis of crime, anthropological theories can be classified as
follows :

a. Atavistic theories;

b. Theories of degeneration;

c. Pathological theories.

1 Nuevos rumbos de la Antropologia criminal, in the Archives de Psi-
guiatria y Criminalogia, which he edits (VI year, 1907).

38 MODERN THEORIES OF CRIMINALITY [§ 9

It is almost impossible to keep these theories apart; because
not only, as with Lombroso and his followers, they appear
knitted together with more or less incoherence, but chiefly
because the three phenomena blend together, and touch
and cross one another. On one hand the degenerative in-
fluences determine atavistic regressions; and on the other,
where can be found the boundary line between degeneration
and infirmity?

It has already been stated that the anthropological theories
developed, above all, in Italy. " The Archive of Psychiatry,
Penal Sciences and Criminal Anthropology for the Study of
the Male Offender and the Insane," 1 was founded by Lom-
broso in 1880, and constitutes the memorial of the school.
The features of his method can be seen in the book entitled
" Legal Psychiatric Expertism, Methods of Procedure, and
Penal Casuistry," 2 consisting of: 1. A first part, in which the
Turinese professor gathers and arranges more than sixty
studies giving estimates of criminals and due to the pen of
Agostini, Antonini, Bertini, Bianchi, Cainer, Carrara, Caterino
Stefani, Codeluppi, Cogneti de Martiis, D'Abundo, Frigerio,
Gurrieri, Jentsch, Marzocchi, Mingazzini, Ottolenghi,
Pelanda, Roncoroni, Seppilli, Tamburini, Virgilio, Lombroso
himself and his .daughter Gina; 2. A second part which
discusses the technique of valuation to be employed in the
study of the criminal; 3. Various appendices: (a) on the
application of mental tests procedure in legal-medical practice,
by Dr. G. Guicciardi; (b) on Ganzer's symptom and simula-
tion, by Lombroso; (c) an alphabetic glossary of the most
common terms used in criminal anthropology, by Dr. Leg-

1 Archivio di Paichiatria, Science penali ed Antropologia criminate, per
•entire olio studio dell 'uomo alienato e delinquent.

9 La perifia paichiatrico legate coi metodi per escguirla e la casuistica
penale, Turin, 1906.

§ 9] MODERN THEORIES OF CRIMINALITY 39

giardi Laura; a work which had been preceded by Rossi's
" Alphabetic Glossary of Criminal Anthropology and Legal
Medicine for Jurisconsults." 1 Moreover, we may mention
the bulky and premature conclusions reached in Angiolella's
" Manual of Criminal Anthropology," 2 and also Antonini's
" Fundamental Principles of Criminal Anthropology." The
lengthy and well documented " Beginnings of Criminal
Anthropology,"4 by Zuccarelli, advance, on the contrary,
very slowly.

Outside of Italy, the progress of anthropology is equally
intense in Germany, but it assumes a decidedly anti-lombrosian
note.

From the very beginning, Lombroso found one of his most
active supporters in Hans Kurella, who, together with Fraen-
kel, translated his work and the choicest Italian and foreign
criminological literature. Considering these theories as
"general hypotheses of great value to science and progress,"
Kurella attempted to adapt them to the Germanic spirit,
presenting them in a revised form, perhaps not very exact,
which constitutes his most important work.5

But he does not seem to have met with success. His work
was followed by Baer's " The Criminal," 6 in which, with all
the patience characteristic of his race, he analyzes every page
of Lombroso's work and reaches a conclusion antagonistic
to the investigations of the Italian scholar. Nacke in his
numerous publications, and Aschaffenburg in his " Crime
and its Prevention," 7 repeated the attack.

1 Glossario alfabetico per I'Antropologia criminate e Medicina legate
pei giuristi, Turin, 1883.

2 Manuale di Antropologia criminate, second edition, Milan, 1906.

3 7 principi fondamentali dell 'Antropologia criminale, Milan, 1906.

4 Istituzioni di Antropologia criminale, Naples, 1900.

5 Naturgeschichte des Verbrechers, Stuttgart, 1893.
«Z)cr Verbrecher, Leipzig, 1893.

T Dew Verbrechen und seine Bekampfung, Heidelberg, 1903.

40 MODERN THEORIES OF CRIMINALITY [§ 9

German criminology develops between these two ten-
dencies, and becomes dominantly anti-lombrosian. At this
stage, the Germans, the solidity of whose science is proverbial,
criticized with severity not only the theories themselves but
also the method employed to obtain them. The eminent
psychiatrist Flechsig wrote the following opinion, which
was repeated later by Nacke: "There is no doubt that in
our days, when scientific investigations ought to be carried
out with severe precision, Lombroso's method deserves
indeed the qualification of atavism.'9 1 The great pathologist
Virchow expressed the same opinion when, in a lecture given
at Spreyer, August 6, 1896, he compared Lombroso and Gall,
with the difference that the former treats only of anomalies:
" In a few years nobody will consider his wrong and insuffi-
cient observations and deductions." 2 Without justification,
some one made so much of this prophesy, that Kirn felt
himself authorized to say in the twenty-fifth meeting of the
Congress of German psychiatrists at Karlsruhe, November,
1893 : " To-day we can consider the type of the born criminal
as absolutely destroyed."

But, according to Sommer3 even if there be no criminal
type in the Lombrosian sense, it does not follow that there
does not exist a born or endogenous delinquent, as the Germans
have called the individual or anthropological factor of the
Italians. Therefore, both Sommer and Bleuler can say that
Kirn, Baer, Koch, Nacke, and later Aschaffenburg, in refuting
the ideas of Lombroso, have placed in relief the basis of that
doctrine which rests on the endogenous origin of crime.

1 Die Grenzen geistiger Gesundheit und Krankheit, Leipzig, 1896.

8 Ausberger Abendzeitung, August 8, 1896. See Lombroso's answer
in his Archivio, XVIII (Virchow, Sernoff and Criminal Anthropology).

* Die Criminal Psychologic; at the session of the Society of German
alienist* of September 23, 1895, in Dresden; Zeitschrift /ur Psychiatric
to. 51.

§ 10] MODERN THEORIES OF CRIMINALITY 41

The German contributions appear in three important pub-
lications : the Archiv fur Kriminalantropologie und Kriminal-
istik, edited by Gross; the Monatschrift fur Kriminalpsycho-
logie und Strafrechtreform, edited by Aschaffenburg; and the
Zcitschrift fur Kriminalanthropologie, Gefdngniswssenschaft
und Prostitutionswesen, edited by Wenge.*

In Denmark, Geill has also conscientiously opposed Lom-
broso's conclusions. In general, we have Havelock Ellis' " The
Criminal," in England;1 Paulina Tarnousky's " Anthropo-
metric Studies of Female Thieves and Prostitutes," and
" Murderesses," 2 and Kovalewsky's " Criminal Psychology^" 3
in Russia; Winkler's " Studies in Criminal Anthropology," 4
in Holland. In the United States, where MacDonald
published his " Abnormal Man " and " Criminology," 5 crim-
inologists proceed always more cautiously, although influ-
enced by Lombroso. In South America, the most important
publications are found in the " Archives of Psychiatry
and Criminology," 8 edited by the Argentine, Ingegnieros.

And now we will examine the different anthropological
tendencies according to the proposed classification.

Section 10. (a) Atavistic Theories.
From Bordier to Ferrero.

We have already pointed out their appearance in Lom-
broso's early works. Almost simultaneously with him,
Bordier, in France, sketched the hypothesis of criminal atavism
by comparing the skulls of murderers at Caen with Broca's

1 The Criminal, London, 1890.

2 Etudes anthropomttriques sur les femmes voleuses et les prostitutes,
Paris, 1890. — Jenchtchini Oubiytsi, St. Petersburg, 1902.

3 Psychologic criminelle, Paris, 1903.

4 Jets over Criminele Antropologie, IT;i:irlc>m, 1896.

5 Abnormal Man, Washington, 1893. — Criminology, New York, 1906.

6 Archivos de Psiquiatria y Criminalogia.
* [Discontinued after vol. I.]

42 MODERN THEORIES OF CRIMINALITY [§ 10

series of the cave of the Dead Man.1 At the same time,
Benedikt, a Viennese psychiatrist, in studying the brains of
beheaded criminals, detected their deviations from the normal
type, and their resemblance to the brains of the great quad-
rumana and of the wild beasts; so that, with these data as
basis, says Orchansky,2 he imagined an atavistic theory,
according to which there existed among sane people some
persons whose cerebral organism is inferior to the average
and represents the heredity of the savage and of the primitive
man. The unfortunates who possess a similar neuro-cerebral
organism would form, according to Dr. Benedikt, the rear-
guard of humanity. Their intelligence and moral sentiments
must be likewise inferior. Men possessing a psycho-physical
organism so badly developed cannot adapt themselves to the
conditions of their social environment, and are fatally destined
to succumb in the social struggle. Crime and pauperism
await them.

Atavism, then, considers the criminal as a retrograde.
Phylogenetically, he has been detained in the human or even
prehuman evolution; ontogenetically, his arrest has taken
place in childhood, granted the parallellism between the
evolution of the individual and that of the species according
to the law of F. Mliller or of Hackel. Lombroso has taken
advantage of this in his accessory theory of criminal childhood.
According to the latter, as the child in its organic development
in the womb presents somatologic characteristics which in the
adult would appear as monstrosities, so in the first years of
his life he goes through a period of initial perversity — an
ontogenetic relic of the primitive immorality of the species —

1 Etude anthropologique sur une strie des cr&nes d'assassins; in the
Revue d'Anthropologie, 1879.

1 Let criminals nuses ei la thtorie de Lombroso, in the Archivio di
Prichiatria, vol. XIX, 1898.

§ 10] MODERN THEORIES OF CRIMINALITY 43

which is overcome or not afterwards according to the educa-
tion received. From this point of view, the born criminal,
in whom the primary instincts have not been subdued, con-
tinues anomalously in a state of childhood, preserving psy-
chological traits of the child, like impulsiveness, want of
foresight, instability, etc.

Granting the metamorphic hypothesis upon which modern
anthropology is based, the theory of atavism becomes for
nearly all those who accept it prehuman and human as well
as organic and psychic. Nevertheless, Colajanni, in his
" Criminal Sociology," 1 eliminates from the atavistic in-
terpretation all the organic or physical element and reduces
it to the simple moral element. According to him, the ethical
characteristics would be the only ones to form the retrogressive
hereditary transmission, and the criminal would be, morally
and not physically, a kind of neo-savage, the relic of times
when crime was a physiological state, which turned very
slowly into a pathological one.

But, to use Ferrero's words, " while some affirmed with a
great display of documents that the primitive man was a
murderer, a thief, a ravisher, and an incendiary; others, with
no less stock of information, answered by citing cases of
savages gentle as lambs, virtuous as Cato, romantic in love
as Don Quixote." In examining and revising the resemblances
of the criminal and the primitive man, investigators became
confused; when archeologists were consulted concerning
language, religion, law, and art, all agreed in declaring our
ancestors endowed with piety, justice, kindness, industrious
activity, bravery, and honesty; 2 geographers, ethnologists,
and travellers like Reclus, Kropotkin, etc., when called upon

1 La sociologia criminale, Catania, 1889.

2 Tarde, L'atavisme moral, in the Archives d' Anthropologie criminelle,
vol. IV, 1888.

44 MODERN THEORIES OF CRIMINALITY [§ 10

to testify, multiplied the instances of good savages, as Spencer
says; and, finally, the works of Lubbock, Espinas, Forel,
Houzeau, Brehm, etc., on animal life, testified to the kind
cooperation, mutual assistance, heroic abnegation to be seen
among simian families and even among bees, ants, etc.

Yet, the atavistic theory has not disappeared. The vitality
of the idea and its deep roots appear in the new form which it
has assumed, a more delicate, less rude and material form,
corrected, in short, in no different a manner than a product of
art or industry.

This corrected form is found in the theory of atavism through
equivalents, stated in a section of the still unpublished work
" Social Progress " by Guglielmo Ferrero.1

Which are the characteristics that distinguish the savage
from the modern civilized man? Certainly, ferocity of customs
is not one; for, when humanity was still in its infancy, we find
those simple and tame tribes thus leading people to believe
that crime is rather a poisonous fruit of civilization's first steps.
These characteristics are rather a ready impulse, inertia,
and a physio-psychic excitability, " three characteristics
always so intimately connected that we are led to admit the
existence of a psychological relation among them, an in-
dissoluble relation of cause and effect." From the full exposi-
tion of facts and documents accompanying each of these
characteristics the author deduces a new conception of criminal
atavism.

" The atavistic trait in the criminal's character is not his
propensity to commit a certain crime; it is rather the psy-
chological state that incapacitates him for work, to which,

1 La morale primitiva e Vatavismo del delitto, in the Archivio d
chiatria, vol. XVII, 1896. The book " Social Progress " has not been
published; but the 'theory of atavism through equivalents has gainrd
much ground. F. Ortiz declares to hnve followed it intentionally in
:><i afro-cubana : Los Negroa Brujos, Madrid, 1900.

§ 11] MODERN THEORIES OF CRIMINALITY 45

through an organic connection, we must add that ready
impulse so common to the criminal that I do not need to
adduce new proofs. The murderer, the thief, the born swin-
dler, are atavistic beings because they are unable to adapt
themselves to the somewhat brutal uniformity and regularity
of human labor in our civilizations. They cannot earn their
living in any other way except through the periodical activity
of hunting and fishing, which sums up the work of the primi-
tive man. The criminal, then, stands apart from civilization,
to which he cannot adapt himself except through indirect
and special means which constitute the crime. On one hand,
his inability to work renders him rebellious to the severe
moral discipline which destroys impulse; thus making im-
possible in him the building up of a solid moral conscience in
which ethical motives might gain a sufficient mutual strength,
and he becomes the prey of his own tumultuous passions
which, at certain moments, can lead him to very violent acts.
On the other hand, since with all the needs created by civiliza-
tion a man cannot live only by hunting and fishing, the
criminal, unable to work, enters upon a systematic war,
crime; so that, if on one side he offends through impulse, on
the other, he does so through necessity in order to gain the
means of subsistence and of enjoying life."

(b) Theories of Degeneration.

Section u. (a) Generical.
From Magnan to Dallemagne.

We have seen how the theory of degeneration was stated
by Morel. At present, however, we find that it has undergone
a radical change in thirty years. The degenerate is no longer
the man who has departed from Adam, but " the being who
finds himself in comparison with his most recent ancestors

46 MODERN THEORIES OF CRIMINALITY [§ 11

constitutionally weakened in his psycho-physical resistance,
and realizes only in an incomplete measure the biological
conditions for the hereditary struggle for existence. This
weakness, which manifests itself by permanent stigmata, is
essentially progressive except in the case of uneven regenera-
tion, and causes with more or less rapidity the extinction of
the species." 1

In studying the development of this conception, our atten-
tion is called to its extraordinary growth. The merit of
establishing the unity of the class is due to Magnan, who, in
his " Investigations on Nerve Centers," 2 gathers into a
compact group the types which had been imperfectly seen
by his predecessors.

What are the relations that exist between criminality and
degeneration? Besides Laurent and others, the following have
attempted to establish them: Magnan, in " Morbid Criminal
Obsession "; Fere, in " Degeneracy and Criminality "; Corre,
in " Criminals," and " Criminal Ethnography "; Marandon
de Montyel, in " Contribution to the Clinical Study of the
Relations between Criminality and Degeneracy." 3 In fact,
nothing would be easier than to call every criminal a degen-
erate; for the appellation implies finality. " Beginning with
the works of Magnan and his school," says Laurent, " the
domain of degeneration has become so vast, that one cannot
tell when it begins and when it ends."

1 Vaschide y Vurpas, Qu'est ce qu'un degenfre f (in the Archives
d'Anthropologie criminelle, vol. XVII, 1902).

* Recherche* sur les centres nerveux, Paris, 1893.

9 Magnan, De I'enfance des criminels dans ses rapports avec la predis-
position naturelle au crime, in the Records of the Congress of Paris; L'ob-
session criminelle morbide, in the Records of the Congress of Brussels. —
Fe're', Degentrescence et criminality, Paris, 1888. — Corre, Les crimind*,
Paris, 1889; U ethnographic criminelle, Paris, 1895. — Marandon de Mont-
yel, Contribution a V etude dinique des rapports de la criminalite et de la
dtgenerescence, in the ArcJdves d'Anthropologie criminelle, 1892.

§ 11] MODERN THEORIES OF CRIMINALITY 47

Dallemagne expresses himself in like manner: " Degenera-
tion and criminality," says he,1 " are two ideas conceived and
defined in very different ways; while the latter tends to
become more and more precise under the influence of the
Italian school, the former tends more and more to disappear."

The undeniable fact which constitutes the cornerstone of
the theory of degeneration is the reality of the progressive
disappearance of races and species through successive and
hereditary degradations, occurring, at times, with the most
subtle and delicate marks of psychic anomaly scarcely per-
ceptible, and, at other times, showing even the extinction
of functions indispensable to racial and individual life. De-
generation is a general phenomenon that can be detected
everywhere. But, side by side with it, and showing that
its evolution is not fatal, there exist regenerations and regen-
erating heredities. The phenomenon of criminality has many
points of contact with degeneration. As degeneration repre-
sents the struggle between the individual and the physical
and social environment for the preservation of the individual,
so crime represents man struggling against the factors which
support order and the progress of societies. Criminal pre-
disposition overlaps degenerative predisposition, the two
varying only in degree and manifestations. Each degenerative
state presupposes a certain dose of predisposition and of
casual intervention; so each crime reveals factors that belong
to the individual and influences coming from environment.

In order to explain this relation, various hypotheses have
been set forth. In the first place, the writer rejects the identi-
fication of the two phenomena; for, in many cases, they
become involved only in a short measure, and in others they
exclude each other. Degeneration has also been considered
a factor of criminality, going so far as to prove that a degen-

1 In a paper read before the Congress of Geneva.

48 MODERN THEORIES OF CRIMINALITY [§ 12

erate can become a criminal. But these proofs do not suffice
to make of degeneration a constant factor of crime, and to
establish between them the relation of cause and effect; for,
frequently, the result of degeneration is opposed to criminal
manifestations.

Certainly, there is degeneration in criminality and crimi-
nality among degenerates; but, what is their relation? Ac-
cording to Dallemagne, degeneration and criminality are
only symbols, terms which are used to group under the same
rubric deeds that are bound by the same doctrinal tie. Neither
of them exists as a natural and irreducible process subject to
invariable laws in continual evolution. The objective reality
is the existence of degenerates and criminals. They alone
must be studied, avoiding generalizations and hasty statistics.

In his " Anatomical, Biological, and Psychologic Stigmata
of Criminality," 1 he bases upon this principle the discussion
on the value of the various stigmata.

Section 12. (/3) Specific.

The ambiguities of the hypothesis of degeneration seem to
disappear with further explanations.

Defect of nutrition of the central nervous system: Marro. —
In " The Characters of Criminals," and " Puberty in Man and
Woman," 2 Marro attributes the origin of crime to a defect
of nutrition of the central nervous system. Lombroso calls
Marro the De Jussieu of criminal anthropology. It would be
better to say that while Lombroso, according to his own
confession,8 liked to work with the microscope in initial
investigations, Marro uses the microscope alone with the

1 Les stigmates anatomigues, biologigues et psychologiqucs de la crtmtno-
litt, Paris, 1896.

* Marro, / caratteri dei delinquenti, Turin, 1887. — La Puberta studiata
ncll 'uoma e nella donna, Turin, 1898.

* L'Anthropologie criminelle et sea progrts, Paris, 1892 (p. 7).

§ 12] MODERN THEORIES OF CRIMINALITY 49

utmost patient labor, which, although less brilliant, is cer-
tainly more safe.

Defect of development of the inhibitory centers: Bonfigli,
Kovalewsky. — Bonfigli, in his " Natural History of Crime," l
by localizing more, finds the injury in the inhibitory centers.
Kovalewsky, in his " Criminal Psychology," 2 reaches the
same conclusion, starting with Meynert's anatomo-physio-
logical law of permanent antagonism between the cortical
layer and the subcortical nuclei. The activity of the former
dominates the latter in normal physiology. Pathologic oc-
currences can invert the potentiality of either and produce
crime as the effect of this inverted activity.

Moral insanity: Gallon, Virgilio, Ribot, Bleuler, etc. —
The conception of moral insanity persists in England, its
birthplace; Galton,3 representing the criminal with sane
intellectual faculties, but with deeply perturbed affective
faculties, approaches very much this conception. In France,
Ribot seems to follow this explanation in his " Psychology of
the Emotions." Virgilio, an Italian and a contemporary of
Lombroso, in " Passanante and the Morbid Nature of Crime,"5
explains crime by a criminal neurosis resembling very much
the above explanation. Dally, Bleuler, Koch, Jelgersma, and
Minzloff , refer also to similar neuroses. Thus, the phenomenon
is again reduced to the former vagueness of moral anomaly
as was expounded first by Despine and then by Garofalo.

Nacke has distinguished himself by his keen criticism of
this conception. According to him, the conditions for a
diagnosis of moral insanity are :

1. An innate pathological character or an extreme

1 La storia naturale del delitto, Milan, 1893.

2 Psychologie criminelle, Paris, 1903.

3 Inquiries to the human faculty, London, 1883.

4 Psychologie des sentiments, Paris, 1896.

* Passanante e la natura morbosa del delitto, Rome, 1888.

50 MODERN THEORIES OF CRIMINALITY [§ 12

eccentricity, accentuated with equal strength in the moral
aspect;

2. Immorality as the decisive trait.

But all this is extremely obscure and difficult. Who can
be considered normal and harmonious? Character and
intelligence form two complex groups. Their factors cross
one another always in perplexing lines, which in the patho-
logic subject are still more intricate. A defect is not like a
mountain in the middle of a plain, but like a mountain among
other mountains more or less high. Science would require
in each case an analysis of the various elements; but, in our
days, this cannot be done with our psychological methods.
The little that is being done is very incomplete; as, for
instance, Toulouse's work on Zola. Moreover, the criterion
for the normal type must be found by means of strict observa-
tions of normal individuals from the same environment and
of the same sex, race, culture, etc.; a work not less impossible.
The most diverse estimates are often presented by experts,
even in respect to the grade of intelligence in each individual
case. For instance, they all say, to-day, that it is impossible
to trace the boundary line between imbecility and idiocy.

On the other hand, speaking of morality, we must know
what we mean by that term. Ideas of this nature evolve and
differ among civilized peoples, even in our days. There is
an inferior morality (not bad, but minimal — a " moral
minimum " ) and a superior morality. At this stage, perhaps
the only thing which is innate is the anatomo-psychological
substratum, perchance hereditary; a state in which the good
germs mingle with the bad. We are all, then, more or less
latent criminals. The evil seed takes root and comes to the
surface under the influence of circumstances, passions, etc.

The coupling of great perversity with great intelligence is
frequently seen, as in the case of the depraved men of the

§ 12] MODERN THEORIES OF CRIMINALITY 51

Renaissance, upon whom a barbarous environment had so
much influence. Luigi il Moro, Cesare Borgia, Malatesta,
Cellini, were surely not imbeciles. On the contrary, we can
easily find moral goodness coupled with obtuse intelligence.
One does not need much intelligence to understand the
Decalogue; the difficulty lies in putting it into practice.
This depends upon the will, which sins, at times: (a) through
lack of energy; (b) at other times, through its faulty quality;
both defects can be either innate or acquired through lack of
development and education, lack of stimulus, or lack of pres-
sure from the environment. Such are, then, the elements of a
differential diagnosis, which remains always an arduous process.

But, in the elements called " degenerative states," to which,
according to Nacke, moral insanity belongs, there exists a
perversion not only of the will but also of the intelligence.
The example of a moral insane with normal intelligence, as
cited by Bleuler, is very rare. In the cases of pure imbecility
as well as in those of strict moral insanity we must distinguish
between active and passive characters. The imbeciles are
not necessarily dangerous (as in the case of innocent childish-
ness). The dangerous passive characters do evil through
omission (through egotism, or through weakness of senti-
ments, of purpose, of attention and reflection, etc.). Among
the active characters, we must separate the inoffensive from
the dangerous, children of an impulsive tendency, often if
not always unintentional.

Only these imbeciles or actively dangerous degenerates,
who are often so impulsive as to harm themselves without
the check of egotism, can be called morally insane.

But it may be that we ought not even to preserve the name.1

1 F. Giner, La locum moral, segtin Nacke, in Anales del Laboratorio de
Criminalogia, I, 1899-1900, Madrid, 1900. — Cf. in the same publication
the note by Simarro: Concepto de la locura moral.

52 MODERN THEORIES OF CRIMINALITY [§ 14

c. Pathologic Theories.

Section 13. (a) Epilepsy.
Roncoroni, Ottolenghi, Perrone Capano, Lewis, etc.

The epileptic theory has been extensively spread in Italy,
from the time when Lombroso coupled it with atavism in the
explanation of delinquency. Roncoroni, Ottolenghi, Tonnini,
and Cividalli, follow this tendency. Perrone Capano, in
" Anarchy and Anarchists," * applies the theory to anarchistic
criminality. He makes the persistency of the epileptoid
state responsible for the strange impulse to criminal hatred,
proceeding from extreme sensibility, lofty altruism, and pity,
which characterizes the purest types; 2 an impulse which at
times — we may add, wonderful miracle! — reverts again
to the state of pity.3

Outside of Italy, the epileptic theory is accepted by Lewis.4

Section 14. O3) Neurasthenia.
Benedikt.

In Germanic countries prevails the neurasthenia theory

1 L'Anarchia e gli Anarchici, Naples, 1901.

2 Bourdeau (cf. the word Anarchie in the Diciionnaire d'Economie
poUtique, by L. Say and J. Chailley Bert) skilfully points out this con-
trast when he says that the greater part of anarchists belong to the class
of " philanthropic assassins." The anarchist Randon himself said (Revue
Anarchiste, November 15, 1893): " We end by hating some by dint of
loving the others." On the question of this contrast, consult our study:
Psicologia del crimen anarquista, in the review La Reforma, August, 1905.

3 An interesting example of this was seen in the attempt against Alex-
ander II, in 1881: "The Emperor lay bleeding upon the snow, aban-
doned by all his following; everybody had disappeared. Only the cadets,
who were returning from the parade, lifted him from the ground, covered
his trembling body with a cloak and put a cap on his uncovered head. The
terrorist KmilianofT, with a bomb wrapped in a paper under his arm
and at the risk of being seized and immediately hanged, ran with the
cadets to the aid of tin- wounded man. Human nature is full of similar
contrasts " (Kropotkin's Memoirs of a revolutionist, part VI, number 8).

4 The genuix of crime, in the Fortnightly Review, 1893.

§ 14] MODERN THEORIES OF CRIMINALITY 53

suggested by Benedikt,1 and taken up by Liszt and
Vargha.

What characterizes Benedikt's theory and makes it original
is not the primitive atavistic hypothesis which has been
alluded to before, but the interpretation of the criminal by
means of an innate neurasthenia, a nervous and native psychic
debility, and consequently, a rapid exhaustion in all work
whether it be physical or mental. Aversion to continual work,
frivolity, thirst after low pleasures, and debility in moral
struggles, are the result of this state, which is as different
from madness as it is from the normal individuality. It is
the old Beard's disease, which Beard himself thought peculiar
to the Americans,2 and which afterwards has been considered
as the result of the intellectual and physical overwork in the
struggle for life of our days. Previous works describing this
state go back to Hippocrates; but, now, like moral insan-
ity, it invades the entire field of Psychiatry, becoming
with Moevius the binding web of degenerative states, and
allowing anomalous reactions of the organism, which resolve
themselves, at times, into crimes.

No better example can be adduced than the sexual excite-
ment under the stimulus of blood, called " Sadism " after
the sadly famous Marquis de Sade (1740-1814), who offered
an example of it, although perhaps not the most perfect
one.3

1 Expos^ des titres des travaux stientifiques du Prof. M. Benedikt, avec
des courts compts rendus, Vienna, 1896.

2 A practical treatise on nervous exhaustion, New York, 1880.

3 In his study on a case of Sadism (in the General Review of Legislation
and Jurisprudence, 1907), MacDonald has compiled a large part of Sadism
bibliography. We notice, however, the absence of Diihren's work, Der
Marquis de Sade und seine Zeit (1901). The recent studies by Vaschide
on the relation between motor impulse and genital action (La psico-
fisiologia del impulso sexual, in the Archivos de Psychiatria, by Ingegnieros,
1906) seem to throw a certain light on this problem of the taste for blood,

54 MODERN THEORIES OF CRIMINALITY [§ 15

Section 15. (7) Various Psychopathic States.
Ingegnieros.

While others pretend to find the root of crime in a final
and single state, whether it be called neurasthenia, epilepsy,
moral insanity, etc., Ingegnieros,1 without undertaking a
similar task, still very premature, classifies and arranges the
psychopathic states connected with criminality as they are
pointed out by clinical process.

Accepting the theory of criminal factors more after the
German school (endogenous and exogenous) than the Italian
(individual, physical, and social), Ingegnieros believes that
these factors may be found combined in variable proportions,
according to the variety of criminals. The following drawing
shows this varied influence applied to Ferri's classification:

i

Born Criminals, etc.

Occasional Criminals, etc.

Habitual Criminals, etc.

Physio-psychic factors.
Social factors.

which, under the action of morbid or degenerative states, is capable of
becoming a stimulating motor image of sexuality; since, according to
Vaachide himself, " Sexual life is due to the evolution and tendency of the
motor centers to discharge."

1 Nuevos rumboB de la Antropologia criminal, in Archives de Psiyuiatria
y Criminalogia, 1007.

§ 16] MODERN THEORIES OF CRIMINALITY 55

On the other hand, recognizing the necessity for criminal
anthropology to study the morphology as well as the psycho-
pathology of criminals, he emphasizes the latter to such an
extent that " if one could speak of schools to designate scientific
tendencies," the one he would follow — contrary to that
initiated by Lombroso — " ought to be called psycho-patho-
logical school."

Finally, on this basis he presents a new criminal classifica-
tion.

Psycho-pathology
criminals.

Intellectual
anomalies
(Dysgnosias) .

Volitional
Anomalies
(Dysbidias).

Moral
anomalies
(Dysthmias) .

Congenital: Criminals through
constitutional insanities.

Contracted : Criminals through
contracted insanity.

Transitory: Drunkenness, toxical
insanities, etc.

Congenital: Impulsive epileptic
criminals.

Contracted : Impulsive chronic
drunkards.

Transitory: Emotional impul-
sive criminals, emotional crim-
inals.

Congenital: Born criminals or
moral insane.

Contracted : Habitual criminals
or moral perverts.

Transitory: Occasional criminals.

Section 16. (B) Sociologic Theories.

According to the sociologic theories, crime is only and
always due to agencies of such nature and of such power that,
at times, far from the intervention of an individual pre-
disposition, the individual, though refractory, is overcome by
them. " How many French soldiers and French peasants,"
says Tarde, in his monograph " The Duel," " have fought
duels against their will! How many Italians and Spaniards
have murdered one another with a frown on their brow I
How many Japanese have stabbed themselves without the
least enthusiasm! All of them have borne testimony to the
divinity of social environment, the social Moloch, the anony-

56 MODERN THEORIES OF CRIMINALITY [§ 16

mous autocrat! " 1 This same monograph, when compared
with any other of the Italian criminalists, Fern's " Homi-
cide," for instance, strikes the keynote of the position which
criminal sociology holds in relation to criminal anthropology.
In vain we might look in the former for the inevitable zoologic
array that precedes the latter; but, instead of natural history,
how much human history it does contain! We also see in the
former the change of physical and biological causes into
the most intimate social factors, and consequently, the solid
critique which has enriched modern criminology.

The problem and the difficulties that arise from the presence
of anthropological data and stigmata in criminals are solved
in two ways by criminal sociology.

First, after the cutting of the Gordian knot, by suppressing
or excluding, more or less purposely, from delinquency the
pathologic cases. Examples of this method are numerous,
so deep-rooted is the idea in the social conscience. Incidently,
we may quote Impallomeni's words: "In whatever degree
we enter the field of medicine, we remain outside the domain
of criminal law." 2 That belongs to the hospital and not to
the prison, say many others.

The second way of solving the problem consists in con-
sidering the physical and the anthropological not as factors
but as symptoms or marks of the social factor which alone
exists. It is a case of economic misery resolving itself, in
the long run, into physiological misery and degeneration.
Interuterine life, even when suspended in fecundation, is
equivalent, from this standpoint, to a first acceptation of
quintessential and refined social environment, the same as
in the reverse and analogous sense anthropologists say that
education is the prolongation or the continuation of heredity.

1 Etudes ptnales et societies, Paris and Lyons, 1892.
1 // Codice penale Itialiano, vol. I. p. 173.

§ 16] MODERN THEORIES OF CRIMINALITY 57

It is a question, then, of anthropological states with social
bases, or, if preferred, of individual marks of the social state.
Colajanni offers an example of these interpretations when,
against the general opinion, he maintains that drunkenness is
not the cause of poverty (anthropological factor producing
a social condition favorable to crime), but that poverty is the
cause of drunkenness (social factor converting itself into an
anthropological state or mark); for, workmen through lack
of means to nourish body and mind, are obliged to recur to
alcohol, which serves physiologically and psychologically as
a substitute.

A similar interpretation is given for the so-called physical
or cosmic factors. In the already classical tripartition of
criminal factors, we have said that the physical factors did
not produce a new school, but that they gave rise to the
polemic between anthropologists and sociologists. We have
already mentioned Quetelet's thermic law; but, while anthro-
pologists like Ferri explain it upon physical grounds, as climate;
sociologists like Tarde, after attenuating it in the same
measure as in criminal maps, bring it back to social reasons,
like the march of civilization from North to South, so wisely
and ingeniously developed by Mongeolle in his " Statistics
of Civilizations." 1 The anthropologists, including Ferri,
answer that, in spite of all, it is the thermic law that deter-
mines the direction of progress, and that civilization, like
cold climate, may be a racial sedative. But Tarde and the
sociologists reply that : " What we really know is the opposite.
The peculiarity of real civilized life is to overexcite the nervous
system, while rural life calms it and feeds the muscles at the
expense of the nerves. Civilization, in this sense, acts not as
a colder climate but as a warmer one. Therefore, the terms
of the question are altered and the solution that must be

1 Estadistica de las civilizaciones.

58 MODERN THEORIES OF CRIMINALITY [§ 17

sought is other than that of the Italian criminalists." l This
new solution is already known; it is found in the social
factors, by which Tarde and other sociologists explain even
the calendar and the hours of delinquency, which were es-
tablished, in the first moments of ingenious safety, by the
partisans of meteors and stars.
The division of the social theories can be stated thus:

a. Anthropo-social theories.

b. Social theories.

c. Socialistic theories.

Section 17. (a) Anthropo-Sotiologic Theories.
Lacassagne, Aubry, Dubuisson, etc.

The spirit of this first direction is summarized in two typical
phrases which marked the deviation from Lombrosian ortho-
doxy at the Congress of Rome. There, Lacassagne, borrowing
a simile from micro-biology, said : " Social environment is
the heat in which criminality breeds; the criminal is the
microbe, an element of no importance until it meets the liquid
that makes it ferment" ; and again: " Communities possess
the criminals whom they deserve."

When stripped of the metaphor, the meaning of these not
so obscure phrases is that delinquency is produced by social
excitations of individual states. An example that throws
light on this theory is found in the thefts caused by the display
counters of great department stores. The mechanism of
these thefts is the following. The store, with all its scenery
to attract the customer, acts as an aperient for crime in certain
persons predisposed by all the neuroses and physical disturb-
ances of which kleptomania is an eloquent sign. It is not,
therefore, a question of the classical theory of opportunity;
for, a larger number of persons in whom the sense of probity

1 La criminalU6 comparte.

§ 17] MODERN THEORIES OF CRIMINALITY 59

is deep-rooted do not feel the temptation, while others who
feel it resist and overcome it. The victim, on the other hand,
carries always the mark, however imperceptible, of a special
morbid state. But this also would not suffice to produce the
crime, if the social environment did not excite it. Moreover,
the motive of gain required by jurists is often lacking.
Woman, the eternally sick, monopolizes the statistics of this
crime, which seems expressly made for her. According to
Doctor Dubuisson,1 pregnant, hysterical, and neurasthenic
women, those addicted to the morphine and the drinking
habit, etc., lose their mind in the movement that exists in
the Louvre and the Bon Marche. Among men, one meets
fetiches, bibliomaniacs, and collectors of all kinds. But both
sexes steal only in similar places, and not where a weaker
irritation is unable to awaken in them the morbid predisposi-
tion.

Moreover, this predisposition, far from forming a state of
well determined boundaries, distinct from a state of preserva-
tion invulnerable to the solicitations of the display or of the
shop-window, possesses a whole gamut of shades and modes
which enter and mingle with the moral action. By the side
of the kleptomaniac, and as the analogous and reverse counter-
part, psychiatry describes, for instance, the oneomaniac, that
is the buying maniac, a victim of a like morbid obsession and
fed by the same factors. This " kleptomaniac who pays,"
as Fere ingeniously calls him, is in juridical speech called the
prodigal, guilty of crime against his own property.

P. Aubry also, in the most interesting of his books, " Murder
Contagion," 2 develops a conception much like Lacassagne's
phrase. The subject of the book is the contagion of murder,
a topic which in pre-Lombrosian literature is discussed in

1 Les voleuses des grands magasins, Lyons, 1903.

2 La contagion du meurtre, 3d edition, Paris, 1895.

60 MODERN THEORIES OF CRIMINALITY [§ 17

Morel's " Moral Contagion . . . , and the Danger which the
Accounts of Crimes in Newspapers Constitutes for Morality
and Public Safety," 1 and in Moreau's " The Contagion of
Suicide, in view of the Present Epidemic." 2

" Long before the discovery of the nature of virulent
diseases, it was known that two elements were indispensable
for a man in good health to catch cholera, for instance, directly
or indirectly from a patient. There was needed a virus —
microbes we would say to-day — ; but neither the virus nor
the microbes can always act. Members of the same family
may be subjected to the same regime of life for several days,
and yet two, three, four of them will be infected, while the
others will not, although exposed to the same causes and to
the contact of their ill or dead relatives. Why is this? It is
because the virulent element has not found in them a pre-
pared soil in which to develop and thrive; while in the others
the soil was of the most favorable, and the germs multiplied
and soon caused more or less serious disorders. When it is
a question of moral contagion, crime for instance, do things
happen otherwise? Not in the least. We shall find the same
process, with the only difference that we can analyze the
noxious elements instead of examining them under the micro-
scope or cultivating them in gelatine."

By the side of heredity, which would be the chief means of
transmitting crime, sufficient in itself from the anthropologi-
cal point of view, Paul Aubry finds that contagion is the
product of morbid psychology whose main elements are
suggestion and imitation. With numerous examples taken
from contemporary criminal history, the author describes

1 Morel, De la contagion morale . . . du danger que prteente pour la
moralite et security publique la relation des crimes donnee par les journaux,
Marseille, 1870.

* Moreau (de Tours), De la contagion du suicide, a propos de V epidemic
octuelle, Paris, 1875.

§ 18] MODERN THEORIES OF CRIMINALITY 61

epidemics like that of vitriol throwing, of criminal mutilation
(upon which we possess treatises by Lacassagne, Ravoux,
Nina Rodriguez), of incineration, etc. In his opinion, the
agencies that prepare the ground are: (a) direct heredity;
(b) unbalanced nervous system; (c) certain anatomical
deformities or conformations still badly defined. The agencies
that transmit the contagion, either singly or combined with
one another, are: (a) home education (guilty family); (b)
prison; (c) reading of novels and periodicals containing
accounts of crimes; (d) the spectacle of capital executions.

There is a relic of the Lombrosian style of thinking when
the writer mentions anatomical deformities, or conformations
still badly defined ; a relic that perhaps is found again in that
very homogeneous group of scholars who form the Lyonese
school, Lyons being the center where, around Lacassagne
and Martin, it is founded; although at present, together
with the " Archives of Criminal Anthropology " which they
publish, it seems to have become a school of Medical Juris-
prudence.

b. Social Theories.

Section 18. (a) Failure in Adaptation.
Vaccaro.

The lack of adaptation of the individual to social environment
is the idea set forth by Vaccaro in " Genesis and Function
of Criminal Laws " and in " Critical Essays on Sociology and
Criminology." 1

His starting point is the struggle for existence; but tending
to prove " that the Darwinian laws of selection and of the
survival of the fittest, although applicable to human society,
have been until now, are still, and will be for a long time

1 Genesi e funzioni delle leggi penali, Rome, 1889. — Saggi critici di
Sociologia e Criminalogia, Turin, 1903.

62 MODERN THEORIES OF CRIMINALITY [§ 18

applicable with such restrictions and attenuations, that in
most cases, together with a progressive and ascending selec-
tion, one meets a reverse process, that is, a descending and
retrogressive selection, a true degeneration."

As a result of this struggle, crime appears to Vaccaro as
an act which the winners who constitute the ruling power
consider dangerous to their own interests; the criminal
appears as a rebel against the complicated system of domestica-
tion by which the winners try to develop only the aptitudes
of the domesticated which they can better utilize for their
ends; and punishment appears as one of the forces used by
them, until, fear having taken root in the nervous cell, it
sufficed to substitute the threat of physical pain for the
permanent physical correction.

For Vaccaro, then, everything is reduced to relations
between conquered and conquerors, considered from a different
aspect from that of other sociologists and criminalists; be-
cause, while for Garofalo this relation produces the selection
of the best, from Vaccaro's standpoint it only leaves the
multiple degenerations of the weak, of the coarse, and of the
pliable, who have succeeded in adapting themselves to a life
of intellectual and physical degradation. Hence for Vaccaro
the phrase legal defense used by the classicists sounds better
and is more real than that of social defense used by the posi-
tivists; because criminal laws have never aimed to defend the
entire social body as the interests of favored people of whom
public order is constituted. Crime can always be an offense
or a violation of positive and constituted law; but, in most
cases, it cannot be an attack on the true social interests which
concern the entire social body. As for the criminal, he is
always a degenerate through social causes, even when showing
physical marks. Is there, then, anything more natural for the
rebels than " after having struggled with poverty and priva-

§ 19] MODERN THEORIES OF CRIMINALITY 63

tions, to show unmistakable signs of degeneration, either
through paralyzation of development, or through atavistic re-
trogressions due to the hardships of life or to diseases con-
tracted during hardships in gestation or after birth? " " And,
in fact, society is greatly interested to know the number of
men who offend through inability to adapt themselves to
the unfortunate environment in which they live; for, in this
case, it is useless to trust in the efficacy and severity of punish-
ments: what is needed is to do the utmost in bettering the
environment itself. If, in the struggle for existence among
men, the fittest were always victorious, the artificial selection
which the new school proposes would be in some measure
justified; but since men do not struggle under equal con-
ditions nor with the same weapons, it often happens that the
fittest, physically and morally, succumb and the mediocre
or the unfit triumph, favored by wealth or by other casual
circumstances."

Section 19. (/S) Segregation.
Aubert.

Aubert's " The Social Center " 1 develops with great
originality the opposite idea.

In his opinion, far from separating himself from the center,
the criminal exaggerates the characteristics of the human
center and constitutes himself a center for the combined
action of phobias and psychoses which represent the mutual
action and reaction between the individual and the environ-
ment, granted in the former an exhausted or shattered nervous
system. For Aubert, phobias are mainly: the feeling of
frustrated life, and the fear of poverty and ignominy. In the
obscure terminology of this writer they are called respectively :
lipothymia, penyaphobia, and ascrophobia. In their turn,

1 Le milieu social, Paris, 1902.

64 MODERN THEORIES OF CRIMINALITY [§ 20

the psychoses refer to: gambling, acquisition of wealth,
quarreling, exterior honors.

When the criminal is thus differentiated from the center
(apothenosis), there follows the rearrangement of a life
hostile to it (enantibyosis), in which he still distinguishes the
protero-delinquency (delinquency of the young without pre-
cedent) from the deutero-delinquency (in two successive forms:
relapsed criminals, and professional ones).

Section 20. (7) Parasitism.
Max Nordau, Salillas.

Max Nordau, in " A New Biological Theory of Crime," 1
explains parasitism as the combination of the initial unadapta-
bility of the criminal and a posterior anomalous readaptation.

" For me," he says, " crime means human parasitism,
using the word in the analogical and not in the purely bio-
logical sense. The condition of the natural and normal
existence of man, like that of the other species of somewhat
superior animals, is to derive his sustenance from nature,
excluding his own species. Wolves do not eat one another,
says a proverb which expresses a true biological law. We find
very few species among which cannibalism does not appear
other than as an exceptional or visible pathological aberration.

" Man is not a cannibal by nature. Even in the savage
state he is never so in his own tribe, although he eats, oc-
casionally, his dead relations. Anthropophagy is only
practiced with the enemy, who, by an opportune fiction, is
not considered as forming part of the same species. Man
takes advantage of the animal and vegetable resources which
Nature offers him. He works for his living and does not beg
it of his neighbor. . . .

" As civilization advances and man is removed from his

1 Une nouvelle theorie biologique du crime, in La Revue, 1902.

§ 20] MODERN THEORIES OF CRIMINALITY 65

primitive condition, his relations with Nature and with other
men become more complicated. He can no longer rely alto-
gether on Nature for his subsistence. Nature has been
confiscated by occupants who utilize it for themselves. Those
who own neither land nor water can obtain provisions only
by personal recourse to the usurpers of the land. The division
of labor begins. Men organize themselves economically, and
production is differentiated and specialized. The family,
the tribe, the nation, the entire species becomes a cooperative
society hi which each member works for all, and in his turn
receives from the common production what he needs. Men
depend on one another, living thus, a smaller number as
usurpers of the soil and a larger one as dispossessed.

" But this relation does not constitute parasitism; because,
with cooperation, there is mutualism. This is the law of the
do ut des; what I ask of my neighbor I pay by an equal
conventional value. Parasitism begins only when, in this
cooperative society, there appear men who wish to take
without lending anything, and who take away from others
the fruit of their labor without their consent and without
any compensation. In short, they are men who treat other
men as raw material from which they may satisfy their
needs and appetites. And the criminals are the ones who
precisely fall under this parasitism."

This idea had been set forth before by Salillas, in a volume
of his work " Hampa," l of the suppressed series " The
Spanish Criminal," in which the author calls it the " funda-
mental theory of crime."

" Mateo Alemdn," writes Dorado 2 (to the memory of

1 Hampa, Madrid, 1898.

a On Salillas' Hampa, cf. the volume: Estudios de Derecho penal pre-
ventive, Madrid, 1901. Salillas summed up this theory in a paper read
before the International Congress of Medicine, which met in Madrid, in
1903.

66 MODERN THEORIES OF CRIMINALITY [§ 21

whom Salillas dedicates his book), " with an exact knowledge
of the national Spanish constitution, states that poverty and
knavery come from tlie same quarry." This means that the
same causes which make the poor man poor make the criminal
a criminal. Poverty is due to the scarcity of the means of
subsistence, a deficiency of the internal as well as external
basis of nutrition; delinquency is the product of the same
deficiency. " Knavery," says Salillas, — and when he says
knavery we can read crime — " follows a basal deficiency
of the nutritive basis of subsistence."

Thus, Salillas to the diagnosis (parasitism) adds the aetiology
of the evil (nutritive injury). But, does that diagnosis fit
the whole phenomenon of crime? Can it be applied, for
instance, to political crime? Both Max Nordau and Salillas,
more or less tacitly, agree in limiting it only to professional
or habitual delinquency.1

Section 21. (c) Socialistic Theories.
Turati, Loria, Colajanni, etc.

From the social theories we reach the socialistic theories.
Emphasizing the importance of the economical factor over

1 Thus restricted we have applied it in the study, La mala vida en
Madrid (Madrid, 1901). Criminality,* prostitution, and pauperism, we
said, are manifestations of the same phenomenon, namely, of parasitism.
But the kind of reaction which society employs against each manifestation
is different; hence the different place assigned by society to its parasites.
The character of each parasitical function in relation to the social organ*
tan is the following:

Criminals = enemies.
Beggars = guests.

Prostitution — mutuality, symbiosis.

Franchi recognizes the superiority of our explanation over that of
Nordau (cf. La guestione della genesi e natura delta delinquenza, in La
Scuola Positiva, vol. XII, 1902).

• Meaning habitual delinquency, the class of professional offenders.

§ 21] MODERN THEORIES OF CRIMINALITY 67

other social factors — as it becomes the doctrine of historic
materialism — they charge the economical system of bour-
geois society with having produced delinquency, which will
almost completely disappear with the advent of the socialistic
regime. The principle of class struggle — very important in
socialism — reappears in criminal socialism when the latter
considers the present penal justice as a system to defend the
class interests of the usurpers of power.

The most perceptible application of socialism to criminology
has been made in Italy, under the influence of the theory
of the born criminal and of the predominance of the in-
dividual causes of crime. Both of these have been affirmed
by Lombroso, Ferri, and Garofalo, the three leaders of the
school, offspring of Darwinism and of Spencer's social philos-
ophy. The Italian writers of Marxian scientific socialism,
Colajanni, Loria, Turati, Prampolini, Zorla, have opposed
them and still do so, forming in their turn a criminal theory
essentially social with the exception of a few important points.

The polemic between anthropologists and socialists seems
to have been settled chiefly in Italy by the fusion of both
parties. " Marx complements Darwin and Spencer, and
together they form the great scientific trinity of the nine-
teenth century."

This symbolic phrase belongs to Enrico Ferri, the same who
started the dispute, and who was obliged to continue it
against socialism in his " Socialism and Criminality." l

Dorado gives the history of this debate in " Criminal
Anthropology in Italy."

" The polemic began," says he, " by Turati's pamphlet
' Crime and the Social Question,' 2 which was provoked by
Ferri's ' Education, Environment, and Criminality.' It was

1 Sociolismo e criminalitb.

* 11 delitto e la questions sociale, Milan, 1883.

68 MODERN THEORIES OF CRIMINALITY [§ 21

kept up by Fern's * Socialism and Criminality,' Colajanni's
* Socialism and Criminal Sociology,' Zorli's * The Penal Ques-
tion and the Social Question,' Garofalo's * Criminology,' l
and by other productions. "

Turati's argument is in substance as follows: Granting
that crime be the product of three classes of factors: cosmic
or natural, individual or anthropological, and social; grant-
ing the five criminal classes enumerated and studied
by Ferri — insane, or semi-insane, born incorrigibles,
emotional criminals, habitual criminals, and occasional
criminals, — it is evident that the first three, in which
the individual factors predominate, could not offend if
there existed only physical and social factors, which exercise
the main influence in leading the last two classes to crime.
Well then, setting aside the influence of the cosmic factors,
which, in as far as they form the ordinary environment,
cannot, according to Turati, be considered as criminal factors,
and which, at any event, exercise only a minimum influence,
and that on the quality rather than on the quantity of real
delinquency; setting aside also the crimes committed by
insane criminals and by those who obey emotional impulse,
who, according to Ferri himself, " are, after all, the least
numerous, and represent a ratio which, in spite of the un-
certainty of data on the subject, can be calculated approxi-
mately at five per cent, of the total criminality in general,"
it follows that the greater number of crimes are those due to
social causes and influences. In fact, if the crimes due to a
predominant individual element reach forty per cent., we

1 Ferri, Educazione, ambiente e criminalita; in the Archivio di Puichia-
triat vol. IV, p. 26, ff. — Ferri, Socialismo e criminalita, Turin, 1883. —
Colajanni, Socialismo e sociologia criminate, I; // Socialismo, Catania,
1884. — Zorli, La question* penale e la question* sociale, Milan, 1884. —
Qarofalo, Criminalogia, part II, ch. III.

*Nuavi orizzonti, p. 255.

§ 21] MODERN THEORIES OF CRIMINALITY 6'J

must deduct many exceptions from this figure, and Turati
rightly does so, reducing the ratio to about ten per cent.
From this the writer deduces that the maximum of criminality,
represented by habitual and occasional criminals, is due to
social environment; and that, therefore, " when this environ-
ment is modified, when the iniquitous bourgeois society is
overthrown and the socialistic ideal is realized, then misery
will end, and the motives for crime will be wanting, education
ending by turning men into angels " (Zorli). He belie
that, once modified, the social environment which makes the
citizen, even the small minority of insane and semi-insane
criminals, of born criminals, and of emotional criminals will
slowly and gradually disappear, because of the better social
order, reign of justice, culture, material welfare, and natural
selection aided and not hindered.

Ferri's " Socialism and Criminality " was written with
polemical intention. The long prelude contains a number of
things and observations more or less connected with the
subject, but always interesting. There he discusses even the
word " socialism," the classification of socialists, whether
society is to progress through evolution or revolution; he
states that the division of men into honest and dishonest
is due, in thought and practice, to the ingenuity of an Italian
minister, and even vindicates the Spencerian conception of
sociology. Then he studies in as many chapters the main
questions which form the subject of Turati 's book. We will
give a short summary of his argumentation. After referring
to the doctrine of the three classes of criminal factors, he
says that the socialists consider only one of them, that of the
social factors, and that, through a psychological process (the
counter-reaction against individualism) and propaganda
strategy. They attribute all the evils and therefore all the
crimes to society, overlooking the power and influence of the

70 MODERN THEORIES OF CRIMINALITY [§ 21

individual factors. Criminal sociology comes to reestablish
the equilibrium between the two exaggerated currents, assign-
ing to the individual and to society the role that belongs to
them. Even under a socialistic regime, there would be a
social environment, the cause of crime. Setting aside a
number of crimes which have nothing to do with the economi-
cal social system, as those against honor, insults, etc., of the
great categories of crimes — crimes of blood and against the
person, crimes against chastity, and those against property -
the first two, far from diminishing, increase with economical
welfare, and the third could not disappear altogether, since
there would never be lacking the kleptomaniacs, the envious
of the property of others, and the lazy, who, to avoid the
effort of going to the common store-house, would rob their
neighbor. In order to gradually overcome crime by bettering
the social element, we should make use of the preventive
measures of the positivistic school, called penal substitutes.
Education, from which socialists expect so much, is of no
value and helps only average natures; for, it is useless for
those who are bad by temperament, and superfluous for the
good. The socialists deceive themselves when they believe
that under the new economical system of the society which
they dream the political and juridical order will be changed;
for, if the latter is bound to the former, it is also certain that
the former is the effect of the latter, since there is relation
in everything, and it is a narrow criterion that looks at things
only from one side as socialism does.

But from the time Dorado wrote this summary, Feni'g
thought has not remained stationary. On the contrary,
going beyond the " sterile boundary of sociology," he has
been able to " free himself from a paralysis of development,
reaching the practical and fruitful side of socialism." The
exposition of these doctrines which Turati and Prampolino

§ 21] MODERN THEORIES OF CRIMINALITY 71

were making around him; the study of Karl Marx* and
Loria's works, the latter being " permeated with Marxian
theories and saturated by a flood of scientific erudition,"
completed his education and hastened the development of
a germ which Colajanni had already seen mature. Immedi-
ately, Fern testified publicly to his socialistic ideas in a
lecture given in Milan, on Labor Day of 1894. Being a
convinced Darwinist and a Spencerian, he felt it as a duty,
for the tranquillity of his science and his conscience, to prove,
as we have said, " that Marx complements Darwin and
Spencer," and that " together they form the great scientific
trinity of the nineteenth century."

This is the object of Fern's " Socialism and Positive
Science," 1 in which, while a new edition of " Socialism and
Criminology " appears, he resumes his position of criminal
anthropologist and of socialist, answering thus by his example
those who, like Loria (The Economic Bases of the Social
System), 2 still repeat the contradictions between socialism
and criminal anthropology.

" That with socialism will disappear each and all forms of
crime, is an affirmation due to a generous sentimental idealism,
which is not based upon strict scientific observation."

It is known that against Virchow's statement that " Dar-
winism leads straight to socialism," the ruling opinion has
thought of seeing such an open incompatibility between the
two that it has been able to state that: " Darwinism will
destroy socialism." Hackel has lent his authority to this
opinion, basing it on three main contradictions : (a) Socialism
proclaims the chimerical equality of men, while Darwinism
explains the organic reasons for their natural diversity;
(b) Darwinism teaches that, in the struggle for existence,

1 Socialismo e scienza positiva.

2 Lea bases economiques de la constitution sociale, Paris, 1894.

72 MODERN THEORIES OF CRIMINALITY [§ 21

only a small minority wins, while socialism pretends that
nobody must succumb in it; (c) The struggle for existence
assures the survival of the fittest, giving rise to an aristocratic
process of individualistic selection instead of the democratic
levelling of socialism. Fern answers these three arguments
with much ingeniousness and perspicacity. His answer can
be thus summed up : (a) It is true that the differences among
men are real; but, there is an element of equality, which
socialism affirms, and that is: that all are men; (b) The
number of winners in the struggle diminishes prodigiously
when passing from the vegetable to the animal world, from
the first to the highest steps of the zoologic scale, from this
to the animal kingdom, and in the animal kingdom itself as
civilization progresses; (c) Like Vaccaro, he affirms that
in the struggle for existence among men, it is not the fittest
that survive, but those who most readily adapt themselves.
In saying this, he does not refer to romantic socialism, but
to the only scientific socialism that exists, that of Marx, which
still needs some rectification at the hands of biologic sciences.

What will happen, then?

Modern socialism is the enemy of Utopianism. To the
frequent questions on the programme of life under its regime,
it answers, with justice, that there can be given only a very
general idea, for the same reason that a Catholic cannot
describe life in the other world.1 Therefore, what can be said
of criminality under a socialistic regime is only this: " When
poverty and the iniquitous disparity in economic conditions
have disappeared, then, through the direct lack of the acute
or chronic stimulus of hunger, through the beneficent and
indirect influence of better nourishment and the absence of

1 For this reason Ferri is right when he calls " lymphatic " and " gro-
tesque " books like Richter's, which pretend to satirize life, " Dopo la
•iUoria del tocialismo" Milan, 1892.

§ 21] MODERN THEORIES OF CRIMINALITY 73

opportunities for an abusive use of power and wealth, there
wijl be a decided decrease and disappearance of those crimes,
largely occasional, which in the social environment have a
greater determining strength. But this will not cause the
disappearance of crimes against chastity through pathologic
sexual aberration and others of the same nature. In con-
clusion, even under a socialistic regime, although in infinitely
smaller proportion, there will always be beings defeated in
the struggle for existence in the form of the weak, infirm,
insane, neurasthenics, criminal, suicidal; and, therefore,
socialism does not deny the Darwinian law of the struggle
for existence. But it will have such a superiority that the
epidemic or endemic forms of physical and moral human
degeneration will be stifled by the elimination of its primordial
cause, physical and moral poverty. Under these conditions,
[the struggle for existence, although remaining the permanent
propelling force of social life, will have its course in less brutal
and more humane forms, that is to say, intellectual forms and
higher ideals. Like physiological and psychic evolution, the
struggle will be based on the assurance that every man will
receive his daily bread for the body and for the mind." l

Colajanni also attributes to poverty and in general to the
entire modern economical system, directly and indirectly, the
great majority of crimes. Speaking of alcoholism 2 and of
delinquency in Sicily (Delinquency in Sicily and its Causes),8

1 While Ferri advances in the path of socialism, Garofalo inveighs
against it. According to the latter, the danger of socialism does not
come from the working class, whose members with the exception of a few
— fanatics in his opinion — have little desire and time to meddle with
things so remote from real life as collectivism. The true danger is found
in the conviction of a large number of people belonging to the middle
class and even to higher classes that socialism means truth, progress, " in-
tellectuality." Therefore, he believes it to be his duty to warn them
against the socialistic superstition.

2 L'alcoolismo, Catania, 1887.

*Z-a dehnqnenza delta Sicilia e le sue cause, Palermo, 1885.

74 MODERN THEORIES OF CRIMINALITY [§ 21

his native land, he sets forth this point of view, which, on
account of the polemic we are describing, he was obliged to
treat more fully in his book " Socialism and Criminal Socio-
logy." l The first part of the book contains the principles
of socialism in relation to modern science. The second part
has become a voluminous and independent work entitled
" Criminal Sociology/' 2 in which, with numerous authorities,
data, and documents, he studies the entire programme of
modern criminology.

This is essentially a critical book. In the presence of
the Italian school of anthropology, when he examines
its fundamental hypotheses (relation between the phy-
sical and the moral, between organs and functions, be-
tween cerebrum and intelligence and morality), and notices
its contradictions (qualitative, ethnical, historical, and
sexual), Colajanni exclaims: "Ignoramus! Ignoramus/ In
repeating this sad truth, we do not despair in the struggle for
the unknown. Everything leads us to believe that the un-
known of to-day will not be so to-morrow. This is the sound
doctrine of Italian positivism, which, rejecting Spencer's
unlmawabk, plunges into the loftiest investigations, and
looks resolutely in the face of the most arduous problems
(Ardigo, Bovio, Angiulli, Sergi, Morselli)."

Thus Colajanni, far from stopping on the obscure features of
the criminal's nature, and yet not satisfied with Vaccaro's
solution, goes beyond socialism and the independent minds
which struggle against the environment, and advances one
more hypothesis which we have mentioned elsewhere.

He does not share a single idea with other socialists, in-
cluding Turati and all those who, following Fourier, admit the
natural goodness and the loving charms of the first men.

1 Sociali*mo e sociologia criminate, Catania, 1884.
9 La Bodologia criminate, Catania, Is

§ 21] MODERN THEORIES OF CRIMINALITY 75

His doctrine, on the contrary, is atavistic; an atavism whose
new traits are: its application to psychical and moral char-
acteristics, and the fact that the regression which it includes,
instead of having the immovable and always even issue of
the primitive man and the savage, is movable and accom-
panies in its movement the evolution of culture. " Psychic
atavism is the reappearance in men of a determinate race, of
psychical characteristics peculiar to phases of past evolutions";
a formula more exact than that of Muntegazza, which calls
it a " sudden regression of very ancient psychical characteris-
tics in men of a superior race." Why must they be very
ancient? And why in a superior race? Every race has its
psychical retrogrades in various degrees and with various
characteristics.

This theory is followed by a long examination of the function
attributed by the school of criminal anthropology to anthro-
pological (age, sex, civil state, heredity, race) and physical
(latitude, altitude, instability of climate, rain, cold) factors.
" People who do not go beyond the surface of things will
think that the greater part of this study is of a thoroughly
negative nature, intended to prove, above all, what are not
the true preparatory and determining causes of crime, without
considering that every negation has always a positive side.
My positive side is that it is necessary to search for the
aetiology of delinquency, preferably in the social contingencies,
because crime is a social or historical phenomenon. . . .
That crime is a product of the social system has been main-
tained for a long time. This is not a recent discovery. Putt-
mann clearly says: leges ineptae criminum causa (Magri).
Helvetius, Filangieri, etc., repeat the same. J. Mill, Perrier,
Laveleye, and many others have declared themselves for the
evolution of human society to the detriment of race, climate,
geographical configuration, etc. Men like Maudsley, Schiile,

76 MODERN THEORIES OF CRIMINALITY [§ 21

and largely Morelli himself, whose competence in similar
matters is beyond doubt, when facing phenomena 'closely
connected with delinquency, as mental alienation and suicide,
have, in order to explain their oscillations, likewise referred to
the influence of the social factors. Spencer, the most authorita-
tive expounder of evolution, subordinates more and more evo-
lution to social factors, in proportion to its complexity; factors
which, on the other hand, are the only ones that can be re-
moved and modified by us(?) . . . Among the most important
of these factors are war, militarism, religion, the environment
as a whole, mimicry, etc."

But, without doubt, the most important of all is the economic
factor.

"It seems impossible that there should be thinkers who.
doubt the pre-eminence of this factor in social evolution.
They are deceived by the complexity of modern life, in which
are often seen men who subordinate economical and material
necessities to intellectual and moral aims. The illusion is
explained by the fact that they pay attention to the in-
dividual and not to the species. In these cases, phylogeny
illustrates and explains ontogeny, showing that these very
noble and admired men are the last product of the entire
previous evolution, in which the economical influence was
evident and even brutal. . . . Nevertheless, it is an exaggera-
tion to affirm that every social fact — political, religious,
aesthetic, or moral — is the direct and exclusive product of
an economical phenomenon (Marx, Loria); because, in
certain given moments, the sentiments and passions of some
superior men, free from material preoccupations, are com-
municated to the masses through an irresistible contagion.
Yet, one does not err in affirming that the consequences of
similar events are almost always economical; because, in the
complexity of interests which are in constant contact with

§ 21] MODERN THEORIES OF CRIMINALITY 77

one another, it is not possible to influence one without reaching
the others; and because material necessities, assigned for a
while to a secondary position, assume again their natural
pre-eminence."

This having been settled, Colajanni devotes three long
chapters to the direct and indirect influence of the economical
factor in its statics and dynamics.

" The economical condition exercises a direct action on the
genesis of delinquency; for, the deficiency of the means to
satisfy the numerous necessities of man is a sufficient stimulus
for him to adopt honest or criminal methods in the struggle
that ensues. These necessities differ according to peoples
and are more numerous among those who have reached a
higher grade of civilization and possess a larger view of life.
Some features of the present economical system give a greater
impetus to immoral activity in some determined social circles.
In some cases, its positive result is greater, and its danger
less than in honorable work. . . . This feature of the direct
influence of the economical system on crimes, especially those
against property, is enormous. But the indirect influence
is not less evident and powerful. Wars, the present industrial
system, the family, marriage, political institutions, idleness
and vagrancy, prostitution, education, etc., are so many causes
of crime. But each of these in its turn is subject, in a more
or less apparent and determined way, to the economical
factor, according to the unanimous opinion of thinkers be-
longing to the most opposite schools: from Morgan to
Lacombe, from Marx to Molinari, from Engel to Thulie,
from Spencer down to Schaffle, Gumplowicz, Loria, Vaccaro,
etc. . . . Suppose alcoholism possessed all the criminal
influence attributed to it, to what conditions does this vice
owe its allegiance genetically? To poverty. . . . Poverty
engenders likewise vagrancy and not vagrancy poverty. . . .

78 MODERN THEORIES OF CRIMINALITY [§ 21

As for prostitution, the greater number of its causes can be
reduced to one common denominator: poverty; and its
clandestine character ' accompanies the necessity of securing
the means of avoiding starvation (Fiaux).' . . . The direct
relation between poverty, economical misery and crimes
against property is easily perceived; but it is not less real
than the relation to crimes against the person, especially
through the indirect influence due to necessity and to the
degree and kind of education received. It often happens
that crimes of this kind, in order to have full course, are com-
bined with the former. There are, moreover, men who confess
crimes that they have not committed, in order to escape the
imperious necessity of hunger and to be admitted to a prison,
where almost always they find board and lodging not rarely
better than that enjoyed by the honest workman. . . .
Finally, the doubts concerning the relations between the
wealth of a people or of an individual and delinquency dis-
appear when one considers the dynamics of such relations;
for, one will see that the disturbances in the economical situa-
tion are the cause of disturbance in criminal conditions.
When the former improves, the number of crimes decreases,
and, vice versa, when it grows worse there follows an increase
in delinquency."

Colajanni could be answered that things are not always
thus. Strangely, in the crimes of blood and even in
those of lewdness, the curve is reversed, since they decrease
during hard times and increase during prosperity.

The relations between the economic factor and criminality
are not yet definitely known. Van Kan's voluminous work,
" The Economic Causes of Criminality," * and Bonger's
" Criminality and Economic Conditions " 2 are based more

> Lea causes tconomiques de la criminalM, Lyon, 1903.
* CriminalU6 et conditions economiqites, Amsterdam, 1905.

§ 22] MODERN THEORIES OF CRIMINALITY 79

on the opinion of the authors than on facts. Many minute
investigations are needed, like those in Fornasari di Verce's
" Criminality and the Economical Vicissitudes in Italy from
1873 to 1890." 1

Section 22. (2) INTERNATIONAL CONGRESSES OP
CRIMINAL ANTHROPOLOGY.

" Using Hegel's terminology to explain the aspects of the
three Congresses of criminal anthropology, "wrote Ferreira
Deusdado,2 " we should say that the first (Rome, 1885) repre-
sents the period of affirmation or thesis; the second (Paris,
1889) that of negation or antithesis; and the third (Brussels,
1892) that of composition or synthesis."

Unfortunately, the comparison used by Ferreira leaves no
room for a fourth term; and yet six Congresses have been
held, and one is to follow every five years. On the other hand,
the terms with which he qualifies the first three are not very
exact when submitted to a careful analysis. We should say
that, after all, every Congress, no matter how international
it may be called, is always a limited meeting of scholars
coming from nations, which, through language, race, and
proximity, maintain more intimate relations and more frequent
contact with one another; and since in everything there rules
the maxim of international law by which locus regit actum,
the Congress of Rome assumed the character of Italian science
as we have seen, and that of Paris that of the French school.
The last Congresses held in Brussels (1892), Geneva (1896),
Amsterdam (1901), and Turin (1906), were more neutral in
science, with a slight emphasis on the anthropological side in
the last, on account of the place and of the celebration of Lom-
broso's scientific jubilee. It ought to be remembered that

1 La criminalita e le vicende economiche d' Italia dal 1873 al 1890, Turin,
1894.

2 A Anthropologia criminal e o Congresso de Brusellas, Lisbon, 1890.

80 MODERN THEORIES OF CRIMINALITY [§ 22

Lombroso and his followers did not attend the Congress of
Brussels, in which was seen an act of protest against the
hostility with which they were received in Paris.

Here follows an account of the last two Congresses held in
the time intervening between the first and the second edition
of this work.

The 5th Congress was held at Amsterdam from the ninth
to the fourteenth of September, 1901.

A good number of Italians hastened to the Dutch city.
Three of Lombroso's family were there: Cesare, TJgo, and
Gina. There were also Ferri, Sighele, Tenchini, Romiti,
Carrara, Eula, Ferrari, Antonini, Frigerio, Treves, Mariani,
Murgia, Squillace, Parnisetti, Scapucci, Zimmerl.

On the other hand, the absence of noted French and Ger-
man criminalists was remarked. No Spaniards were present.

Italians and Dutch were in the majority; and since not a
few of the latter, beginning with Van Hamel, look with favor
upon the tendencies of the former, the 5th International
Congress of Criminal Anthropology was considered a triumph
for the Italian school of criminology.

The programme was as follows:

A. General Questions.

1 . Anatomical and physiological characteristics of criminals.
Descriptive studies.

2. General psychology and psycho-pathology. — Criminals
and madmen. — General considerations. — Practical meas-
ures.

3. Legal and administrative application of criminal an-
thropology. — Directive principles. — Preventive measures,
— Repressive measures.

4. Criminal sociology. — Economic causes of crime. —
Other causes of delinquency. — Delinquency and socialism.

5. Criminal anthropology and comparative ethnology.

§ 22] MODERN THEORIES OF CRIMINALITY 81

B. Special Questions.

Alcoholism. — Juvenile delinquency. — Senile delinquency.
— Hypnotism. — Sexuality. — Criminal psychology in liter-
ature, etc.

As usual, time failed to take up so many questions. Many
important communications were not discussed.

After the inaugural address by Van Hamel, Lombroso's
paper on "The latest investigations of Criminal Anthropology"
served as introduction to the business of the Congress. The
paper was a kind of index of the main works produced since the
Congress of Geneva. He mentioned the studies of Pellizzi
on " The disorders of the stratification of the nervous cells
of the cerebral cortex in epileptic idiots "; those of Carrara
on the " Frequency of progressive characteristics in crim-
inals "; those of Favaro, Modica, and Audenino on " Deter-
mined anatomical and physiological peculiarities "; the studies
of Fano on the " Hindoo fakirs "; those of Mariani on " Rus-
sian criminals "; those of Ottolenghi on " Tattooing "; those
of De Blasio on " The hieroglyphics of Neapolitan camorris-
tas " ; those of Laschi on " Banking delinquency," etc. A
very incomplete memoir on psychological and social studies
ended by referring to the conception of the symbiosis of crime
(social utilization of criminal instincts), the last word of the
school.

Anatomy and physiology of criminals. — Tenchini, in his
own and in Zimmerrs name, spoke on " A new abnormal
process in the human presphenoid, observed mainly in various
skulls in the Craniological Museum of the Insane Asylum of
Reggio-Emilia."

Parnisetti presented a fine album with various drawings
of " Anomalies of the Willis' arterial polygon (circles of
Willis) in criminals."

Treves emphasized the value of " Functional Stigmata,"

MODERN THEORIES OF CRIMINALITY [§ 22

which are, perhaps, more important than somatic anomalies,
either as a trait of degeneration and vital insufficiency; or,
being too difficult to detect, it is to be presumed that they
exist in a greater number of cases than observed thus
far.

Cesare Lombroso undertook to answer the question:
" Why criminals of genius do not show the criminal type? "
His opinion, as we have already seen, is that this type appears
mainly in atavistic criminals, like ravishers, murderers, high-
way robbers, etc.

Other works sent to the Congress were:
Romiti, "Anatomical characteristics in the corpses of
criminals."

Giuffrida Ruggeri, " The asymmetry of pentagonoid skulls."
De Sanctis, Toscano, Cortini, and Gay, " Contribution to
the anthropology of the hand of degenerates: finger-nails,
digital marks."

De Blasio, "Right-handedness in Neapolitan thieves."
Zuccarelli, " Frequency of the Wormian fossa."
Criminal Psychology and Psycho-pathology. — The Congress
turned its attention mainly to the subject of collective crimi-
nal psychology.

Sighele, in a paper on " Collective crime," summed up the
theories fully developed in his books: " The Criminal Couple,"
" Sectarian Delinquency," " Mob Crimes," and " Positive
Theory of Complicity."1 He considers suggestion as being at
the bottom of collective crime, from that committed by two,
the criminal couple composed of the active and the passive

— the incubus and the succubus of the ancient enchantments

— to the most complicated social aggregation : the sect and the

1 La coppia criminate, second edition, Turin, 1897. — La
settaria, Milan, 1897. — I delitti della folia, second edition, Turin, 1902.
— La teoria positiva della complicita, Turin, 1894.

§ 22] MODERN THEORIES OF CRIMINALITY 83

mob, in which impersonality, unconsciousness, and mental
minority, even in a mass of selected persons, reach their
limit.

Carrara, in order to fill a gap left by Sighele, spoke of
" The criminal couple and the principal and accessory in
crimes of blood."

Bouman reported " An important case of psychic infection,"
which had occurred in Aspellern (Holland), a region where
religious questions are being revived. A man suffering an
abnormal hallucination expresses delirious ideas of condemna-
tion against all those who approach him. One of his brothers
is immediately infected; and, one day, excited by the caresses
of a girl who had come to him for exorcism, kills a servant whom
he thought had shown her little respect, mutilates the corpse,
and tramples upon it. Twenty-seven persons, acting by sug-
gestion, affirm under oath that the victim fell struck by
divine fire.

Andreotti read a paper on the " Psychology of provoked
crime."

On the whole, the Congress appeared little favorable to the
doctrines of modern collective psychology.

In his paper on " Some observations concerning the psy-
chology of crowds," Jelgersma criticized the mystical con-
ception of the soul of crowds, showing how it must be under-
stood in order to free it from that defect.

Steinmetz and Benedikt criticized the abuse of the concep-
tion of suggestion.

Dechterew answered with other objections.

Sighele and Carrara undertook a reply.

Benedikt presented the only paper on individual criminal
psychology, entitled " A fundamental psychological formula
and its relations to criminology." Let M stand for each
manifestation of the life of an organism; N for the congenital

84 MODERN THEORIES OF CRIMINALITY [§ 22

qualities; E for the evolution (including all the influence
of education, environment, climate, vicissitudes of life, in-
firmities, etc.); 0 for the occasional irritations which each
manifestation of life requires, and we shall have the following
formula:

M = (±N,±N'9±E±0).

Portigliotti read a report on " Tattooing as a psychologic
trait."

Miss Delfine Poppee read a paper on " The handwriting of
criminals," which gave rise to a discussion on graphology.

In reference to psycho-pathology, the Congress busied itself
mainly with the relations between degradation and criminality
and with the proper measures against the insane criminal.

Gina Lombroso reported " Two clinical cases of acquired
criminality in old age."

Ferri referred to another case.

Frigerio reported four other clinical cases, by which he
wished to demonstrate that we ought to reduce the penal
responsibility of degenerate criminals without delirium.

Antonini brought forward a communication on " Degenera-
tion and criminality among people affected with pellagra."

A discussion on degeneration followed. Henri Martin, one
of Lacassagne's followers, remarked appropriately that if we
say with the Italians that criminality is sometimes the prod-
uct of environment and at other times the product of degen-
eration, we do not depart from the epoch of Morel.

Crocq, Baer, Albanel, Dechterew, and Ferri took part in
the discussion.

Lewis and Kurella also referred in their papers to two
problems of criminal psycho-pathology. The former spoke on
" The influence of psychopathy on the production of crime ";
and the latter on " Criminal degeneration as a symptom of
the variability of the type."

§22] MODERN THEORIES OF CRIMINALITY 85

The following important papers were sent to the Congrc
the subject of criminal insanity :

Dedichen, " What measures shall we adopt concerning
criminals declared insane by the experts, when their crimes
are not considered sufficiently dangerous as to compel us to
send them to insane asylums? "

Meijer, " Assistance for criminal lunatics."

Deknatel, " Trial and treatment of border-cases in civil
and military communities."

Nacke, " What is the best method of disposing of criminal
lunatics? "

Antonini, " Casuistry of criminal insanity."

Renda and Squillace, " Criminal madness in Calabria."

Zuccarelli, " An epileptoid mental invalid who from a
suicidal impulse experiences an homicidal one, and is acquitted
by the Tribunal of Chieti, Abbruzzi."

The question was somewhat neglected for lack of time. The
Congress only discussed Dedichen's paper, in which he sug-
gests a mining colony in Norway; and that of Meijer, who
prefers the Prussian system of sanitariums connected with
prisons. Antonini, on the other hand, advocated separate
sections in criminal asylums.

Legal and administrative applications of criminal anthro-
pology. — This very important question was also neglected by
the Congress.

The following papers were read:

Ferri, " The symbiosis of crime."

Dorado Montero, " Is punishment, properly speaking,
compatible with the data of criminal anthropology and so-
ciology? "

Gaukler, " The necessity of separating in the penal system
the measures which aim to punish the criminal and those which
aim to correct him, and of putting at the disposal of the judge

86 MODERN THEORIES OF CRIMINALITY [§ 22

distinct penal measures, some for punishment and others for
correction."

Clark Bell, " Indeterminate sentence in New York."
Zuccarelli " Necessity and means of preventing the repro-
duction of individuals in a serious state of degeneration."
Morel, " Prophylaxis and treatment of relapsed criminals."
Miss Robinovitch, " The duty of the State in reference to
the origin and prevention of crime."

Cutrera, " Preventive measures against crime in Italy."
Moteri, " Criminal anthropology in its legal applications."
Franchi, " Penal procedure and criminal anthropology."
Lacassagne and Martin, " Positive and irrefutable results
produced by criminal anthropology in the enactment and
application of laws."

Ferri spoke on the symbiosis of crime, or rather on how
should the criminal be utilized in cultured society, when the
diffusion of scientific theories on the natural and social genesis
of crime allow a state of peace between criminals and judges.
After that Gauckler's paper was discussed. It is impossible
to support a double entry system of criminology, that is, half
corrective and half punitive. Undoubtedly, some members of
the Congress accepted it as a matter of course.

Van Hamel lamented the absence of Dorado, whose paper
aimed at pointing that out.

Miss Robinovitch's paper showed a more modern spirit
than Gaukler's. She presents as model the famous Elmira
Reformatory of New York, and ends by declaring that in
sociology as in medicine the principle of prophylaxis is bound
to win.

Due to the absence of the authors, the Congress did not
discuss the other papers, among which were some as interesting
as that of Bruno Franchi, " Criminal procedure in relation to
criminal anthropology."

§ 22] MODERN THEORIES OF CRIMINALITY 87

Criminal sociology. — The social causes of crime were ex-
pounded by Tarde, Denis, Colajanni, and Veroni.

The first sent a paper on " The economical causes of crim-
inality."

The second and the third on " Socialism and criminality."

The fourth on " Delinquency among the upper social
classes."

In the absence of all, only Colajanni's conclusions were
read, which are the following: 1. Even if not admitting that
socialistic propaganda and socialism cause a diminution of
criminality, it is certain, however, that they do not increase
it; 2. Criminality varies according to social conditions;
3. Socialistic ideals contribute in the measure of their realiza-
tion to a decrease of crime, without determining the inverse
order of crimes against the person and against property,
which would condemn humanity to despair of its moral reform.

Comparative ethnography. — Steinmetz, who was present
at the Congress, had sent a well documented study on the
relations between criminal anthropology and ethnography,
which was not discussed.

Among other papers sent to the Congress were the following:

Turco, " Delinquency in Calabria."

Schiatarella, " The delinquency of the Hebrew Prophets."

Sutherland, " The disappearance of the convicts in Austra-
lian society."

Special questions. — The notion of crime, juvenile delin-
quency, senile delinquency, political crimes, alcoholism,
sexuality, criminals in art.

Piepers discussed " The notion of crime from the point of
view of evolution."

Bombarda brought forward a communication on " Crime
among animals," recommending systematic observations that
may lead to a true biological animal history.

88 MODERN THEORIES OF CRIMINALITY [§ 22

The following works on juvenile delinquency were pre-
sented to the Congress:

Baer, " Juvenile murderers."

Gamier, "Juvenile criminality."

Carrara and Murgia, " The delinquency of the young and its
preventive measures."

De Sanctis, Tosanio, Cortini, and Gay, " Physical,
physiological, and psychological factors in the conduct of
children."

Arie de Jory, " False testimony of children."

Berillon, " The pedagogical dispensary of Paris."

Struelness, " Some considerations on criminal childhood,
and some measures adopted in Belgium for the prevention
of its development."

Various speakers referred to the constant growth of crime
among the young. For instance, according to Dr. Gamier,
murder in France is six times more frequent among minors
than among adults.

Berillon, the advocate of hypnotism, spoke of its application
to the education of vicious and degenerate children.

After juvenile delinquency the question of senile delin-
quency was taken up in the way of contrast and analogy.

Wellenbergh summed up his conclusions on " Senile de-
linquency," stating that the mental changes caused by
age deserve particular attention by legislation. In fact,
the latter ought to set senility at the age of seventy-two, and
order a special procedure for the old without criminal record,
who might not have offended until then.

The Congress announced two communications on political
crime: one by Niceforo on " The utility and necessity of
political crime "; and the other by De Bella on " The high-
priest of criminal anthropology." The absence of the authors
prevented their discussion.

§ 22] MODERN THEORIES OF CRIMINALITY 89

The relation between alcoholism and criminality was dis-
cussed in the following papers:

Legrain, " Relapsed drunkards in the presence of the law."

Gamier, " Alcoholism and criminality."

Luzenberger, tk Alcoholism in Italy."

Only Legrain read his paper.

Furthermore, Eula spoke on the causes of frustrated psy-
chopathic heredity in some drunkards of his country.

The subject of sexuality was one of the novelties
of the Congress. As always, some were scandalized and
spoke of suppressing it. But they were unsuccessful and
Aletrino was able to read his paper on " The social condition of
sexual perverts." Moll and Viazzi sent also papers, the former
on " Sexual perversion," the latter on " The legal defense of
female chastity."

Finally, on the subject of criminal anthropology in art,
Teschich presented a work entitled " Criminal types according
to Dostoyewsky."

The Congress passed the following resolutions:

On the proposition of Miss Robinovitch, it was resolved:
** That the 5th International Congress of Criminal Anthropol-
ogy, meeting at Amsterdam, expresses its grief for the attempt
on McKinley's life and the consequences that may result,
and affirms the necessity of continuing the scientific investi-
gations of methods to fight crime and put an end to its
causes, moved only by a desire of attaining a higher appre-
ciation of humanitarian ideas and a more efficacious and
equitable social defense."

On the proposition of Doctor E. Martin, it was resolved:
" That in the opinion of the 5th International Congress of
Criminal Anthropology, the biological examination of the
guilty ought to be added to the ordinances on all criminal
matters."

90 MODERN THEORIES OF CRIMINALITY [§ 22

On the proposition of Mr. Albanel, it was resolved: " That
the Congress is of opinion that, in every country, juvenile
delinquents be examined by a competent physician, preferably
before coming to trial, and that those who give signs of de-
generation be placed in a medico-pedagogical institution for
their mental and moral reform."

On the proposition of Dr. Gamier, read by Dr. Boncour, it
was resolved: " That the Congress advocate the monopoly
of the production and the sale of alcohol in order to prevent the
increase of criminality."

The 6th Congress was held at Turin, beginning on the
28th of April, 1906.

The programme appeared in a new form. The following
topics were to be discussed.

1. The treatment of juvenile delinquency in criminal law
and in penitentiary discipline,, according to the principles of
criminal anthropology;

2. The treatment of female delinquency;

3. The relations between economical conditions and crim-
inality;

4. Equivalents between criminality and the various forms
of sexual psychopathies;

5. Criminal anthropology in the scientific organization of
the police;

6. The psychological value of the witness;

7. Prophylaxis and therapeutics of crime;

8. Institutions for life detention of criminals declared
responsible through mental defect.

Around these questions were to be grouped all the free
communications that might be presented.

The discussion of all these topics fills a large volume of
more than 600 pages with fine illustrations. We will give ,m
account of its contents, excluding the memoirs which do not

§ 22] MODERN THEORIES OF CRIMINALITY 91

deal directly with criminology, even when they treat of
auxiliary sciences as general anthropology (Cliio, " The
blood of the orang-outang has more affinity with that of man
than with that of non-anthropoid apes "; J. Marro, " Normal
and pathologic anatomy of the pituitary body, anomalies of
the zygomatic arch, two new arrangements of the internal
orbital walls, the cocygeal foveola "; Niceforo, " The an-
thropology of the poor "; Robinovitch, " The genesis of genius
and sex "; Viola, " Anthropometry as a basis of classification
for individual constitutions "), psychology (Aly Belfadel,
" Mental tests of touch, taste, and smell "; Audenino, " Right-
handedness, left-handedness, and ambidexterity "; Bianchi,
" The language zone and the frontal lobules as organs of
thought and personality "), psycho-pathology (Audenino,
" Consciousness in epileptic fits, skull and cerebrum of an
idiot "; Burzio, " Investigations of cretinism "; Frassetto
" Diagnosis and significance of degenerative characteristics ";
J. Marro, " Parietal division in the idiots, the medical occipital
fossa in the insane "; Tenchini, " The morphology of the thy-
roid glands in the insane "), and medical jurisprudence (Clark
Bell, " The use of poisons in embalming "; Vicarelli, " Common
methods in criminal abortions").

Omitting the above, the works that will engage our attention
fall into three groups:

1. Anthropology.

2. Sociology.

3. Penology.

Some works being too descriptive cannot be summarized.
Of such we will mention: Antonini and Zanon, " Anthropology
of the insane and the criminals of Friuli "; Audenino, " Unilat-
teral mimic pareses in the normal, the insane, and the crim-
inals "; Bellini, "Anthropological notes on a melancholic
murderer "; Cherie-Ligniere, " Further remarks on the

92 MODERN THEORIES OF CRIMINALITY [§ 22

sources of the second branchial arch in normal adults, the
insane, and the criminals "; Clark Bell and Eckels, " A case
of homicide by chloroform "; Falciola, " Contribution to the
experimental method in the legal-medical study of aliena-
tions "; Frigerio, " Cases of criminal sexuality "; Gualino,
" The prominentia squamae occipitalis in the normal, the crimi-
nal, and the insane"; Lattes, "Contribution to the study of the
cerebrum of the female offender "; Levi Deveali, " Comparison
of criminals' handwriting with that of the insane "; Mar-
gnani, " The skeleton of a pseudo-political insane criminal *';
J. Marro, " The malar division in the criminals and the in-
sane, cranial variations in the insane, division of their nasal
bone "; Panseri, " Three skulls of criminals "; Pighini, " Crime
in precocious dementia "; Roncoroni, " Histo-morphological
anomalies in epileptics and criminals "; Tovo, " The transverse
palatine suture in criminals."

Of the remaining works we shall begin with Sommer's
" The application of new methods of investigation in criminal
anthropology." He claims that the psychological methods
of investigation employed thus far must be perfected pro-
gressively according to the principles and the development of
experimental psychology (motor and graphic methods, ob-
jective judgments of valuation, association of ideas, time of
reaction). Thus it will be possible to reconstruct the epilep-
toid type, so important in criminology, especially in violent
and sexual crimes. By this consideration of epilepsy, Somnier
is a Lombrosian, a rare example in Germany, where, in gen-
eral, they reject the equality between epilepsy and criminality,
contrary to what is found in Italy. But, even granting this
premise, that all epileptics and bom criminals do not present
the type as such, Audenino answers this question which is
asked as an objection to the Italian doctrines. In his opinion,
we must distinguish between epileptics and born criminals

§ 22] MODERN THEORIES OF CRIMINALITY 93

properly speaking and those who have become so in conse-
quence of illness, intoxication, or traumatism. Certainly, the
latter cannot show the exterior somatic type of their class;
but, since the author himself admits that among those of the
first class there are individuals who do not show it, the ques-
tion remains as unsolved as before. Del Greco, freer from Lom-
brosian influence, presents a formula of the criminal character.
Its main traits are combativeness and rebellion, dominating
his social sentiments. Levi writes sympathetically in his
" Observations on the philosophical range of the Lombrosian
theory."

—3

More important than all these generalizations, still so ob-
scure, are some studies on certain classes of criminals and
determined forms of criminality. Perhaps the most interest-
ing is Marro's " The psychic hyperaesthesia of homicide."

The painstaking teacher believes that the determining
cerebral condition of the murderer is essentially a psychic
hyperaesthesia, now morbid now physiologic, which renders
some subjects so sensitive to the impressions touching their
personality that it is impossible for them to tolerate them
without a sudden and violent reaction against the person from
whom they proceed. The unfolding of puberty, the effect of
heat and alcoholic intoxication mainly favor so dangerous an
h yperaes thesia .

Treves* attention is called to a special form which crime
takes occasionally, and proposes to call it " labyrinthic or
paranoeidal crime." Its morbid nature is so complex and
inextricable, that the criminal himself cannot explain it, or
the reasons he gives are so strange, absurd, and paradoxical,
that the confession loses all resemblance to truth.

The same writer discusses in another paper " The crimi-
nality of emotional geniuses," dealing especially with Ben-
venuto Cellini. The lamented Angiolella discusses the same

94 MODERN THEORIES OF CRIMINALITY [§ 22

question in " Genius and criminality." The three cases which
he studies are Cellini, Aretini, and Mirabeau.

Judge Ryckere summarizes his studies on " The criminality
of female servants," which, in his opinion, is distinguished by
its simple, brutal, unimaginative, misoneistic, monotonous
character, like the minds that produce it. The two military
physicians, Colonel Ferrero and Lieutenant Consiglio, are
the authors of a well documented monograph on professional
criminality, entitled " Military criminology." Then come
two communications on juvenile delinquency, one by Miss
Faggiani, " Considerations on juvenile delinquency "; the
other by the Spanish professor of medical jurisprudence,
Valenti, " Precocity in criminality." Both make no new con-
tribution.

Under the title " Simulators," Charpentier relates three
good cases, the last being of a twenty-two year old degen-
erate female thief who simulates kleptomania. In conclu-
sion, he admits the difficulty of finding a convenient treat-
ment for these cases.

Another group of communications do not deal exactly
with criminals, but with prostitutes and sexual per-
verts. Ascarelli's " Digital prints in prostitutes " shows,
as the most important conclusion, that the anomalous forms
of the line texture of the tip of the fingers are more frequent
in prostitutes than in normal women, and that the more
primitive the drawing the more accentuated is the difference.
Gualino treats of the means of detecting homosexuals. Finally,
Lombroso traces a parallel between homosexuality and con-
genital criminality. This parallel, sufficiently superficial,
shows that in childhood there is a transitory criminality even
in those who will be later normal beings, as well as a kind of
transitory homosexuality, a moral hermaphrodism, even in those
who will be normal sexual beings; that as there are true

§ 22] MODERN THEORIES OF CRIMINALITY 95

born criminals and occasional criminaloids, so there are born
and occasional perverts; that there exists a type of sexual per-
vert as there is of born criminal, and that it will surely betray
itself occasionally; and, finally, that the aetiology of both
phenomena is analogous if not identical.

Then come the works on criminal sociology, that is, those
that treat of criminality and not of individual criminals.

First we will mention Roos' " Investigations on the causes
of the increase of thefts in winter and of crimes against the
person in summer." Is the phenomenon due to physical
or to social causes? To explain the frequency of thefts in
winter, the length of the nights has been adduced as an im-
portant factor; while for the increase in crimes of blood in sum-
mer the rise in temperature or the organism's effort of adap-
tation to the summer heat has been proposed (Corre). But*
since in the case of thefts we cannot overlook the increase of the
needs and misery of winter, and, in crimes of blood, the greater
contact which takes place among peoples in summer, it follows
that in both groups of crimes there intervene both classes of
factors, without our being able to define exactly their re-
spective roles.

" The fascination of criminality," which forms the topic of
Masini's study, points out the suggestive influence which
great criminals and great crimes have upon the masses, to
the point of producing complete imitations.

Tovo and Rota discuss a " Law of criminal development,"
according to which criminality, as it passes from light forms
to serious ones, shows proportionally slower and more uniform
variations; for instance, in the number of murders there is 1
variability than in that of homicides, and in the number of
robberies less than in that of small thefts, etc.

Another group of communications refer to local criminality
in determined regions. Angiolella investigates " The ethnical

96 MODERN THEORIES OF CRIMINALITY [§ 22

and psychologic origins of the Camorra and of highway rob-
bery "; Slingenberg speaks of " Criminality in relation to class
struggle in the Lower Countries." Of the same nature is
Here' communication on " Criminality and the working
classes," referring to the present conditions in Austria. In
general, according to him, the increase in the modern trade
agitation causes an increase of criminality among working
men; but, contrary to the observation made by Niceforo some
years before, he claims that the increase of industrial activity
among women does not involve an increase of criminality
peculiar to the sex, even though it may lead to the dissolution
of the family and to laxity among young people. Minovici's
paper treats of " The female offender in Roumania."

Penology follows. Lombroso's daughter, Mrs. Gina Fer-
rero, speaking of the role played by " Pity in Justice," asks that
the latter be complemented by the former as an expression and
a synthesis of the entire complicated labor of the human mind,
through which we may see and foresee the consequences
which a painful event can have in the life of men.

The sentimental aspect is complemented by the scientific
aspect presented by Mount Bleyer in his " Treatment of
criminals." " To instruct ignorant criminals, to reform the
corrigible, to prevent the incurable from offending, are the
duties which the State must fulfil with loyalty and zeal. When
science, constantly applied by a prolonged number of genera-
tions, will have removed the causes of crime by repressing the
too rapid growth of population, by respecting the laws of
heredity, by reorganizing the family and social life and scien-
tifically instructing the individual as a member of the com-
munity, then the criminal type will disappear or will remain
only as an historical record."

Happy optimism! Nevertheless, " jEthoiatry, science and
art of reforming minor and adult delinquents," to which Dati

§ 22] MODERN THEORIES OF CRIMINALITY 97

devotes a short note, does not fail. Briick-Faber treats of
" Neuro-electricity in the service of penitentiary work."
For incorrigibles, who are rebellious to corrective action, it
is necessary to employ an exogenous action sufficient to pro-
duce useful results in spite of and without the intervention of
the criminars will. This action must aim at the cerebral
organs, the instrument of psychic functions, and through the
neuro-electrical medium of a suggester.

Two criminal groups deserve special attention: the insane
and the minors. For the first we have: Antonini's " The law
on insane asylums in Italy and the criminal insane "; Del
Greco's " The moral treatment of the criminal insane ";
and Garofalo's " The establishment of asylums for the perpet-
ual confinement of certain criminals declared irresponsible."
For the second we have: Briick-Faber's " Treatment for
young criminals in the Grand Duchy of Luxemburg "; Kahn's
"Treatment of young criminals in criminal law and in the peni-
tentiary discipline, according to the principles of criminal
anthropology "; that of Van Hamel on the same subject; and
Albanel's " Practical organization of juvenile criminal pro-
phylaxis." Kahn's communication is conspicuous for the
eleven clinical cases of young criminals he discusses, as that of
the fourteen year old girl who writes verses in praise of
the apaches and of the bloody dagger ! Van Hamel's communi-
cation is also remarkable for the precision of his conclusions
in favor of the scientific treatment of young criminals, a treat-
ment which " can and must be " a prototype of that employed
for adult offenders.

Finally, the volume does not lack studies on criminal pro-
cedure.

In reference to general scientific prosecution, Niceforo has
a paper on " The police," and Ottolenghi one on " Criminal
anthropology and the scientific organization of the police."

98 MODERN THEORIES OF CRIMINALITY [§ 22

The identification of criminals is discussed in Gasti's " Dac-
tyloscopic identification and the system of classification in
Italy," in Locard's "The present services of identification
and the international catalogue," and in two communications
by Reiss on the " Word portrait." Reiss has also a third
communication on " Some new applications of photography
in judiciary investigations." The value of testimonial evi-
dence, a delicate question, is discussed in Claparede's " Col-
lective experiments on testimony and cross-examination," in
Mariani's observations on " The psychology of witnesses," and
in Brusa's " The psychological value of testimony." Presi-
dent Maynard discusses the " Modern judge," claiming that
he ought to be the defender of equitable justice against juridi-
cal justice, a true " social plague."

The Congress passed the following resolution: In reference
to the treatment of the so-called incorrigibles, resolved " that,
in order to protect society against dangerous abnormal in-
dividuals, it be necessary to place them in a special asylum,
where no other severities be employed than those neces-
sary for vigilance and discipline.

" This confinement will be indeterminate; but there will
be a provision for freedom when the temperament or the in-
stincts of the criminal have changed to such a degree that no
doubt remains of his moral reform.

" The regulating measures which set forth that criminals
acquitted on account of insanity be kept in separate wards
in the asylums, will be modified so as to substitute for the
juridical criterion of acquittal the clinical criterion of the diag-
nosis of the form of criminality."

As for the penal treatment applicable to minors, the Con-
gress adopted the following conclusions:

1. In order to prevent and fight juvenile delinquency, it is
necessary to adopt penal and penitentiary prophylactic meas-

§ 22] MODERN THEORIES OF CRIMINALITY 99

ures, based upon educative principle.

2. The prophylactic measures recommended are:

a. Supervision in the family, the school, and the shop;

b. The judicial deprivation of parental power;

c. The placing of children in honorable families, preferably
outside the city;

d. The establishment of special houses of detention.

3. As for the penal and penitentiary treatment, the tradi-
tional distinction of a fixed classification of penalties must be
abandoned, and the Judge must be given the power to choose,
with unlimited freedom and according to the exigencies
of the individual case, from a series of measures modelled in
their general features upon domestic discipline. They should
consist in:

a. Repression;

b. Small fines paid by the culprit himself out of his own
wages;

c. Short detention in an educational house of discipline;

d. Conditional sentence;

e. Placing the offenders at the disposal of the Government
for their systematic and professional education in a State or
private institution till they reach majority, or placing them in
families inspected by the State with conditional freedom as a
test measure.

4. Every measure concerning young criminals or near
criminals must be necessarily preceded by a medico-psycholog-
ical examination of the individual and information concerning
his ancestors. In the course of the treatment, the authority
of the psychologic physician must be thoroughly recognized
in order that he may prescribe, if necessary, a distinct medico-
pedagogical treatment, especially in the case of undeveloped
children.

5. Both in theory and in practice the treatment of young

100 MODERN THEORIES OF CRIMINALITY [§ 23

criminals must serve as a prototype for the treatment of
adults.

6. It is desirable that the prosecution of the young receive
the least publicity possible.

On the subject of the investigation of crime, the Congress
expressed the desire that " Governments should collect the
objects confiscated from criminals in a museum for the progress
of legal studies and of the scientific investigation of crime."

On Lombroso's proposition, the Congress resolved " that
the magistrates, lawyers, and other judiciary officials acquire
a medico-psychiatric education that may enable them to
know in what cases competent physicians ought to be sum-
moned in order to avoid judicial errors."

The resolution ends by the announcement " that in the
next Congress the following question will be taken up as the
order of the day : To determine what studies must be taken up
by committing magistrates and police officers so that they may
impart in the future a justice more in accordance with the
dictates of criminal anthropology."

3. CRIMINOLOGY IN SPAIN AND IN SPANISH AMERICA.

A. Spain.

Section 23. (a) Beginnings.

On account of its western location and scientific seclusion,
the modern ideas of criminology were late in reaching Spain.

We find a few popular treatises in juridical and social re-
views; but this expository presentation is not faithfully and
systematically carried out until the publication of Dorado's
44 Criminal Anthropology in Italy," 1 written on the ground.

After that, the expository and popular presentation of the
subject continues uninterruptedly. Among the publications
of this kind, excels Ruiz' " Criminal Anthropology," 2 and

1 La antropohgia criminal en Italia, Madrid, 1889.

» Martinez Ruiz, La sociohgia criminal, Madrid, 1889.

§24] MODERN THEORIES OF CRIMINALITY 101

notably the first part of the work, in which he treats of the
growth and sources of the new science.

Section 24. (b) Contributions.

Spread of criminality. — It seems thai Spain was one of the
first countries to take a census of its criminality; for — accord-
ing to a writer l — " in a decree of January 4th, 1729, Philip
V. charged all tribunals in the capital and elsewhere to report
through his Council all pending and disposed of cases. Charles
IV., in 1792, sanctioned the practice of drawing up annual
summaries of the civil and criminal business dispatched the
previous year. The famous Cadiz Constitution, article eleven,
refers to this practice. . . .

" In spite of all these decrees," the writer continues, " the
service of criminal statistics did not begin, even partially, until
1884, when it was only possible to present them for the years
1843, 1859, 1860, 1861, and 1862. . . . 2 From 1882, the
work continues regularly. . . ."

It must be added that the plan of the work was influenced
more by bureaucratic than scientific aims; and we are j uni-
fied in suspecting even the scrupulousness of its process.

The first Criminal Statistics collected by the Department
of Justice (1838, 1843, 1859, 1860, etc.) are preceded by a
ministerial report, a practice which, from 1882, is not renewed
until 1900, with the publication of a report by Minister Mon-
tilla. This report is preceded by a lengthy summary of the
spread of criminality in Spain, and is based on official docu-
ments.

These documents form a necessary basis for the studies that
follow. But, the studies on the spread of criminality in Spain
are few and deficient.

1 D. Pazos, Resefla de la organizaci6n y trdbajos de la Estadistica o facial
en Espafla; in the Madrid review La Administraci6n, 1898.

2 Pazos forgets the criminal statistics for 1838.

102 MODERN THEORIES OF CRIMINALITY [§ 24

The seventh volume of the " Memoirs of the Royal Acad-
emy of Moral and Political Sciences " l contains a few pages
headed by the following suggestive caption : " Criminality in
Spain from 1848 to the present day. To determine the
causes for the increase or decrease of criminality, taking into
account the influence of the character and customs of the
inliabitants of each region, their industry, their degree of
education and culture, their political institutions, and their
laws, especially those relating to the administration of justice
in criminal matters." These are the records of a discussion
held in the Academy during 1887, 1888. The men who took
part were: Colmeiro, Figuerola, and the Marquis de Reinosa y
Cos Gay<5n. The debate proved of tiresome insignificance.
The hopes which the above caption suggested were defeated.

After that time, the works that can be cited are:

An arid and insignificant memoir by Jimeno Agius, entitled
" Criminality in Spain." 2

A few pages and drawings in C. Silio y Cortes' " The Crisis
of Criminal Law " 3 and " Criminality in Spain " 4 by the
same author.

A study by Dorado on " Criminality in Spain during the
period of regency (1885-1902)," 6 was inserted later in his
" Criminology and Penology." 6 Undoubtedly, this work is
much superior to those that preceded; only, we must discard
Dorado's personal equation, his tendency to muddle up
matters.

1 Memorias de la Real Academia de Ciencias Morales y Politicas.

2 La criminalidad en Espafla; in the Rivista de Espafia, vol. CVT and
CVII, 1885.

1 La crisis del derecho penal, Madrid (no date).

4 La criminalUa nella Spagna; published in La scuola positiva, vol.

n, i89i.

• La criminalidad en Espana en el periodo de la regencia (1885 to 1902);
publiahed in Nueslro Tiempo, May, 1902.

• De Criminalogto y Penologla, Madrid, 1906.

§ 24] MODERN THEORIES OF CRIMINALITY 103

Finally, we must add the works of some foreigners, who
have made valuable contributions to the study of criminality
in Spain. Among these are the pages in Fern's " Criminal
Sociology " 1 and " Homicide in Criminal Anthropology " ; 3
those in E. Tarnowsky's " The spread of Criminality in West-
ern Europe "; 3 and, finally, Augusto Bosco's latest work,
" Criminality in various countries of Europe," 4 in which he
devotes an entire chapter to Spain.

The period studied is between 1883 and 1899.

Bosco remarks, above all, that delinquency in general, in-
cluding minor offenses, has not met with a considerable in-
crease; on the contrary, it remains stationary, at least as far
as crimes are concerned.

Crimes in Spain preserve their primitive character and are
little susceptible to influences which in other countries modify
their manifestations. The frequency of crimes against the
person, especially homicides, continues to be one of the main
features of Spanish criminality; and although the number of
persons convicted of homicide has not increased, Spain still
remains one of the countries in which this crime is more
frequent. Infanticide, on the other hand, numbers few cases.
A decrease in wounding is noticeable, but it has not con-
tinued in later years. However that may be, says Bosco, the
physical, ethnical, economical, and historical conditions,
emphasize, as a psychological characteristic of the Spaniards,
a few moral traits, which, if on one hand constitute their
dignity, on the other, lead them to crimes against the
person.

Insult and calumny seem on the decline, although

1 Sociologia criminale; fourth edition, Turin, 1900.
a Omiddio nelV Antropologia criminale, Turin. 1 v

3 The spread of criminality in western Europe; published in the Re-
view of the Department of Justice, Saint Petersburg, 1

4 La delinquenza in vari Stati di Europa, Rome, 1903.

104 MODERN THEORIES OF CRIMINALITY [§ 24

statistics do not give us definite information on the subject,
nor is it possible to well estimate the causes of the
phenomenon.

Assaults and insults against authority and public function-
aries increased until 1908; but they diminished soon after, as
if to the stimulus of rebellion there was opposed a traditional
resignation to domination.

As for crimes against honor we may suspect that it is not
customary to recur to criminal justice, so fewand insignificant
are the data at hand.

Of the crimes against property, thefts and robberies are
the most frequent, while frauds and swindles are the less nu-
merous. Professional criminality is not wanting in the cities,
nor are thefts in the country. The distress among the people,
grown worse in late years, stimulates crimes against property,
although conditions hi Spain prevent their increase. The
slow growth of bartering and trade, the slow introduction
of new methods of commerce and credit, explain the relatively
small number of convictions for swindling, bankruptcy, and
falsification.

In short — apart from the combined circumstances which
do not enable statistics to state the true situation — Spain
has, in general, a constant criminality of grave and violent
nature, and a minimum one of minor offenses, which swell
the statistics of the most civilized nations. Only in those
provinces where the growth of industry introduces new habits
of life, we find statistics analogous to those of other European
countries.

This, then, is the general condition of criminality in the
country.

Now, we will point out the works that treat of some specific
aspects of criminality.

The author of this book has made a study of the " Criminol-

§ 24] MODERN THEORIES OF CRIMINALITY 105

ogy of the Crimes of Blood in Spain." 1 Statistics show that
criminality of blood leads all other forms in intensity. Below
is a table giving the ratio of homicides of all degrees for every
million inhabitants:

Mexico

. 1,000*

Chile
Argentine Republic (maximum
Tucuman) ....
United States of America .
Italy

. 340
in the State of
. 230
. 120 3
. 95.

to 98

Spain
Hungary
Ronmania
Portugal
Ireland
Austria

. 74.
. 74.
. 38.
. 23.
. 23.
. 23.

to 77
to 77
to 47
to 26
to 26
to 26

France
Belgium
Switzerland
Russia

. 14.
. 14.
. 14.
. 14.

to 17
to 17
to 17
to 17

Denmark
Sweden
Germany
England and Scotland
Holland

. 14.
. 11.
3.
6.
5.

to 17
to 14
to 11
to 3
to 3

This intensity affects mainly the impulsive forms of the
crime; but it is distributed with extraordinary irregularity
over the country: from a maximum of 17.60 crimes of blood
for every 100,000 inhabitants in Logrono to a minimum of
1.60 in Orense. The irregularity is generally due to racial
distribution. Thus, in the Northwestern provinces of Lugo and
Oviedo, where the brachycephalic (eurasian) type prevails,
there is a minimum intensity of crimes of blood; while in the

1 Criminalogia de los delitos de sangre en Espafla, Madrid, 1906.

2 These figures must be lowered to 180, according to the Mexican
criminalist C. Roumagnac (cf. our study " El homicidio en America,"
in the volume " Figuras delinquents, " Madrid, 1909).

3 Bosco: Uomicidio negli Stati Uniti d' America; in the Bulletin de
I'Institut Internationale de Statistique, vol. X, 1897.

106 MODERN THEORIES OF CRIMINALITY [§ 24

regions mainly inhabited by dolichocephalics (eurafricans),
including the upper plateau of Castile, the lower Ebro, the
eastern slope and the elevation of Andalusia, there is a
maximum intensity, especially in the second and last
places.

But, what is the cause of this distinct criminal disposition
of races?

In order to answer this question we must consider the
physical and social environments which mould ethnical stocks.

The influence of culture and of the density of population is
sufficiently noticeable in the distribution of criminality;
but, what determines it better are the natural factors, like
temperature and humidity.

Taking humidity, for instance, whose influence can be
more easily detected, we find that the rainy Asturias and a
portion of the Basque provinces and the very rainy Galicia
and another portion of the Basque provinces experience the
minimum intensity of criminality of blood; while in the
drier zones (province of Almeria) the contrary takes place.
The reverse relation between humidity and criminality of
blood can offer no better example than the great intensity
found in the province of Logrofio, which belongs to a zone of
normal humidity, and which preserves in sufficient purity
the ancient impulsive and violent Iberian race. It seems,
therefore, that with the humid and sedative environment of
the Atlantic climate, the race loses its tendency to violence;
while the contrary takes place in the dry environments of
bright sunshine.

The influence of the winds — if it could be studied — might
also explain some features in the distribution of this form
of criminality.

The role which minors play in the criminality of the country
has been studied by £. Cuello Galon in his " Child and Juvenile

§24] MODERN THEORIES OF CRIMINALITY 107

Criminality in certain Countries." 1 He makes the following
observations :

1. The decrease of this form of criminality both in quantity
and in gravity (a strange phenomenon of contrast with what
happens in other countries, where the increase is so contin-
uous, constant, and noticeable, that Niceforo considers it
one of the features of modern criminality); 2

2. A possible increase of crimes which imply cunning;

3. Predominance of crimes against property: thefts in
preference to other forms;

4. The high figures of convictions for wounding, second
only to that for thefts;

5. The diffusion of crimes against property in thickly popu-
lated cities, especially of those not accompanied by force,
and the almost absolute absence of violent crimes.

There are few monographs dealing with territorial, pro-
vincial, or local criminality. M. Jimeno Azcarate is the
author of one entitled " Criminality in Asturias," 3 written
with a certain apparatus extremely modern (maps, diagrams,
tables of statistics), but full of commonplace repetitions.
Yet, it would be desirable to have more such monographs
dealing with local criminality.

The author of this book, in collaboration with Lianas
Aguilaniedo, has discussed criminality in the capital in
" Low Life in Madrid." 4 The work belongs to the large
body of writings on dangerous classes in cities, to which
contributions have been made by Niceforo, Sighele,
Caggiano, Cutrera, De Blasio, Alonghi, Cuidera. M. Gil
Maestre, the author of " Criminality in Barcelona and

1 La criminalidad infantil y juvenil en algunox paws; in tho Revista
general de Legislaci6n y Jurisprudencia, vol. CVITI, 1'

2 La trans formacidn del delito en la sociedad moderna, Madrid, 1902.

3 La criminalidad en Asturias, Oviedo, 1900.

4 La mala vida en Madrid, Madrid, 1901.

108 MODERN THEORIES OF CRIMINALITY [§24

other great centers," 1 had already preceded the author
by his " Criminals of Madrid." 2 In all these works, little
use is made of the statistical method, which has been
entirely subordinated to the psychological point of view.

The phenomenon of moral degeneration, limited to a
definite surrounding, has been fully considered in " Low
Life in Madrid."

The authors consider the man who has broken away
from social discipline and from his class, the so-called golfo
(outlaw) among us, as the protoplasm of criminal life. A
product of vagabond temperament, of early neglect and
social decadence, the golfo lives as a parasite of the
social organism, devoting himself to theft, prostitution, and
beggary. We find hi him the aptitude and, at times, even
the practice of these three phases of life, which he combines
according to caprice or convenience.

Certain individuals of an extreme erratic and restless
nature remain indefinitely in this state; but oftener, with the
approach of puberty, the goljos evolve into a more differen-
tiated state.

Thus it happens that, adopting as a definite occupation one
of the said modes of life and practicing it habitually, they
become identified with delinquency, prostitution, or crimi-
nality, producing the delinquents, the prostitutes, or the
beggars.

This state is noticeable by the loss of a number of erratic
tendencies, characteristic of the golfo. When they become
settled in any of these differentiated states, they experience
also a series of changes and transformations related to the
adaptation to the new mode of life; that is, they lose the

1 7xi criminalidad en Barcelona y en las grandes poblaewnes, Bar-
celona, 1886.
> Lot malhtchoret de Madrid, Gerona, 1889.

§ 24] MODERN THEORIES OF CRIMINALITY 109

characteristics which may hinder them and develop those
that may prove useful. Undoubtedly, the differentiation
is never so complete as to atrophy altogether the primary
aptitudes for every kind of parasitism. Then, there appears
what 13 called by naturalists the phenomenon of mimicry,
by means of which, obeying the instinct of preservation,
biological species abandon or hide the characteristics for
which they are persecuted and imitate others in order to
mask themselves. Therefore criminal life often imitates the
tolerated social types.

The differentiation of species is determined by various
factors. Now it is heredity or education that causes children
to follow the occupation of their parents; now it is tempera-
ment that leads the more impulsive to criminal life and
leaves the weak of body and mind to a life of pauperism; at
times, it is the sex that leads women to prostitution and men
to crime; at other times, it is the union of exterior circum-
stances, which, arriving at the opportune time, allow an easy
exploitation.

Society reacts against these forms of delinquency in different
ways; hence the different place which it assigns to its parasites.
The delinquent whose attack is keenly felt is persecuted; the
beggar is tolerated through confused reasons of superstitious
pity; and finally, with the prostitute society makes an ex-
change of service: do id fades.

We believe, therefore, that in relation to the social organism
the characterization of each parasitical function is as follows:

Criminals = enemies;

Beggars = guests;

Prostitution = mutualism, symbiosis.

Nevertheless, in spite of his hostility toward us, the criminal
is the superior type in low life. The struggle in which he is

110 MODERN THEORIES OF CRIMINALITY [§ 24

obliged to live has endowed him with a capital of energy and
activity which is not to be seen in the prostitute and in the
beggar.

The last two form the inferior class in low life. Two im-
portant facts lead us to this belief. In the first place, of the
different classes in low life, the weakest and the most useless
are those who tend to pauperism; and in the second place,
when age or disease determine in criminals and prostitutes a
regressive evolution, both of them break down and fall back
on pauperism, the last refuge of parasitical life.

The general theory is followed by monographs on de-
linquency, prostitution, and pauperism, the last two showing
marked deficiency of treatment.

The local delinquent types, which the authors have called
" criminal fauna of Madrid," are classified into genera, species,
and varieties.

Two genera of delinquency give rise to five species. One,
in which force is used, produces the robbers and the ruffians;
the other, in which skill is employed, produces thieves, forgers,
and swindlers. Their varieties are many. The robbers are
subdivided into cutpurses, house-breakers, footpads, and high-
waymen. The ruffians include the gambling house and the
brothel bouncers, etc. The thieves are subdivided into pick-
pockets, and tricksters. The forgers include the varieties of
confidence men; and the swindlers include the sharpers.

The classification is better seen in the following table:

C Against ( Articles . . . Cutpurses.
I things I Houses . . . House-breakera.
f Aggression | Against ( In the streets Footpads.
Delinquents who! [ persons / On the highway Highwaymen.

employ force ] Protection extended to forbidden and immoral resorts.
(. Gambling house and brotfiel bouncers.

( Simple abstraction .... Pickpockets.

§24] MODERN THEORIES OF CRIMINALITY 111

Authorities fix the number of habitual offenders at nearly
three thousand.

The ratio of the species is obtained by another approximate
calculation.

The various species of thieves constitute the bulk of de-
linquents. The figures are so high, that, together with their
varieties, they constitute half the total.

The other half is unevenly taken up by robbers, forgers,
and swindlers.

The first of these are the most numerous; but the species
tends to disappear not only because, being the most dangerous,
the city tries to eradicate it with greater energy; but also
because, in the internal evolution of criminality, which
especially in urban environments develops cunning and fraudu-
lent forms, it represents an archaic form which is being
abandoned and which is preserved only by virtue of that
tenacious persistency that clings always to primitive and
inferior systems.

Forgers are less numerous; but they tend to develop by
virtue of the evolutionary movement just mentioned.

Finally, a study is made of criminal association and of
how delinquency is related to prostitution and pauperism,
especially to the former.

Causes of crime. — Insanity has been studied by Salillas.
In his " Criminal Lunatics in Spain," * he reaches the two
following conclusions:

a. The development of insanity in Spain is considerable;

b. Criminal insanity meets with little interest both on the
part of public opinion and on that of courts of justice.

The scarcity of documents, the vagueness and the errors
of diagnoses, forbid the author to pass a judgment on other

1 Los locos delincuentes en Espafta; in the Revista de Lcgislacidn y
Jurisprudencia, vol. XCIV, 1889.

112 MODERN THEORIES OF CRIMINALITY [§ 24

questions, as, for instance, on the peculiar nature of hallucina-
tions in Spain.

The influence of alcohol on the degeneration of the race
and on criminality, is studied in a few general monographs,
like J. Gomez Ocana's " Life in Spain," 1 and Salillas'
" Alcoholism "; 2 or in more localized ones, like J. M. Lianas
Aguilaniedo's " Alcoholism in Seville." 3 Jimeno Azcarate's
" Criminality in Asturias " contains also some interesting
documents.

Crime is also influenced by some anthropological coeffi-
cients.

The greater part of the course on " The fundamental theory
of crime " given by Salillas in the Madrid Atheneum (1902-
1903), dealt with the development of the physiological age
in crime among a total of 110,727 Spanish criminals. This
part of the course had been preceded by a lecture on " Age
and Crime in Spain." 4

Salillas, finding the maximum intensity which in criminal
statistics corresponds to each of the five ages distinguished
in the penal code (younger than 9 years, older than 9 and
younger than 15, older than 15 and younger than 18, older
than 18 and younger than 60, older than 60), defines the
type of each as follows :

1st age. — Delinquency having a nutritive significance.

2nd age. — Delinquency having a nutro-generative signifi-
cance.

3d age. — Generative delinquency with its homologue,
delinquency of blood.

1 La vida en Espana, Granada, 1900.

* El Alcoholismo, Barcelona, 1903.

1 El alcoholutmo en Sevilla ; in the Adas del IX Congreso international
de Higiene y Demografla, Madrid, 1900, where other statistics on alcohol-
ism in Spain may be found.

4 La edad y el delito en Espana, published in the Revi&ta de Legislacidn
y Juritprudencia, vol. C, 1902.

§24] MODERN THEORIES OF CRIMINALITY 113

4th age. — Delinquency of unadaptability or rebellion.

5th age. — Psychic delinquency.

All these terms must be interpreted through his fundamental
bio-sociological theory. His theory is based on facts already
pointed out. Theft appears from the very first ages. Wound-
ings follow. Robbery comes later, and still later come swind-
ling and fraud, which rarely appear in the age of puberty.

Sex is another biological coefficient that has been studied.

Using a diagram based on data taken from the " Peni-
tentiary Annual " for 1889 and published by the Department
of Justice, the author of these pages observes the following
characteristics in female delinquency : 1

a. Female delinquency is always less than the male;

b. This difference oscillates according to age, from a mini-
mum of one half to a maximum of more than the twentieth.

c. The greatest approximation between the criminality of
the two sexes is found in the first age (till the age of eighteen)
and in the last (over seventy) ;

d. The spread of crime according to age shows almost a
perfect parallelism in the two sexes;

e. It is to be noticed, however, that the process of decrease
is more brusque and accentuated in male delinquency than
in the female, due to the change of life in women, which in
Spain takes place about the forty-sixth year, the age when the
definite decrease of crimes occurs.

If the equivalence between prostitution and crime is ad-
mitted in this study, then female delinquency assumes a
character determined essentially by sex.

In fact, before the period of puberty, delinquency, still
insignificant, is not much greater in the male than in the

1 Cardcter de la delinquencia feminina ; in the Revista ibero-americana
de Ciencias Medicos, March, 1903; and in the volume: Alrededor del delito
y de la pena, Madrid, 1904.

114 MODERN THEORIES OF CRIMINALITY [§ 24

female. When puberty is reached, we find a natural con-
dition which predisposes to delinquency, as has been fully
shown in the works of Marro and of Stanley Hall. Instantly,
male delinquency increases rapidly in ascending disproportion
to that of the female, until it reaches the maximum of twenty
times greater in the third age (the twentieth year).

Female delinquency also increases. During the entire
period of menstruation, which, according to Gutierrez*
figures,1 lasts about 31 or 32 years (from 14 to 46), criminal
activity among women increases in the form of prostitution
and delinquency, especially in the former.

The differentiation between prostitution and delinquency
having been established, the spread of the latter is as follows:

During the sexual period, especially from the twenty-fifth
year, female delinquency reaches the maximum and maintains
it with a certain fixity. This is due to the fact that at this
age woman is subject to organic disturbances, like menstrua-
tion, pregnancy, and nursing, which, poisoning the blood,
produce acute neuroses and increase her disposition to de-
linquency. This organic factor may be the reason, or one of
the reasons, for the phenomenon observed by Prinzing, namely :
that conjugal life acts upon the two sexes in a different man-
ner; it increases the criminality of women and diminishes that
of men.2

Finally, the change of life arrives. Criminality decreases
as well as prostitution, and the equilibrium between the
criminality of the two sexes, altered from the age of puberty,
in reestablished. Male delinquency, which was more than
twenty times greater than the female, becomes only double,

1 Estadistica aobre la vida sexual de la mujer en Espafla ; in the Revista
\bero-americana de Ciencia* Medicos, 1901.

3 Der einfluM der Ehe auj die Kriminalitat des Mannes y Die Ermehe,
ru*g der Kriminalitdt de* Weibes durch die Ehe ; in the Zcitschrift fVr
Socialwiuerucha/t, 1889.

§24] MODERN THEORIES OF CRIMINALITY 1 1 ">

through the extinction of prostitution as a substitute for
crime.

Characteristics of the delinquent. — A few anthropometrical
data on Madrid delinquents are found in the book " Low Life
in Madrid."

The average cephalic index among 119 delinquents of the
capital, measured by the anthropometrist Dfaz Sanchez,
is 78.53, which is very near the normal index in Madrid
(77.87, according to Oloriz). The series is analyzed thus:

AVERAGE INDEX

10 Dolichocephali 73. 73

71 Mesocephali 77. 44

36 Sub-brachycephali 81. 53

2 Brachycephali 87. 80

The following inedited table is based on the data found in
Oloriz' memoir, " Cephalic Index in Spain," * and in Diaz
Sanchez' memoranda:

CEPHALIC INDEX

JUDICIARY
DISTRICTS

Normals, measured by
Oloriz

Delinquents, measured
by Diaz

Number
measured

Average

Imlex

Number
measured

Average
Index

Avila

40
22
16
16
23
21
697
44
10
44
23
10
13
12

77.40
77.99
79.32

7",. SO
77.50
77.26
77.87
78.78
78.35
79.7i>
77.01
77.03
78.39
75.90

18
22
15
9
14
10
11!)
18
13
is
i:>
6
4
9

77.47
78.34
78.40
77.'
78.'
77
78.53
72.91
7! '.43
78.34
77.04
77.50
7S.63
78. is

Arenas .

Are"valo

Barco

Cebreros

Pied rail ita

Madrid

Alcala

Colmenar

Chinch6n

Getafe

Navalcarnero

San Martin

Torrelaguna

As it has already been observed, this table shows a geiu-rul
tendency to emphasize the ethnical type.

1 Elindics ceftiico en Espafla, Madrid, 1894.

116 MODERN THEORIES OF CRIMINALITY [§24

" Low Life in Madrid " contains also some information
concerning height, which, according to Oloriz and Hoyos,
is smaller in delinquents than in law-abiding citizens. This
is only true in offenders belonging to the lowest classes of
large centers.

Another investigator, J. J. Arraez y Carrias, has studied
some peculiarities of Andalusian delinquents.

First, he has studied the skin and the hair of Andalusian
delinquents,1 by comparing 150 convicts with as many persona
having no penal antecedents. Arraez finds nothing peculiar
in the color of the skin; except in some, who have a certain
greenish-yellow tint, due, perhaps, to the bile. He notices
that wrinkles are more frequent and premature in the de-
linquents than in the honest. He finds the zygomatic wrinkle,
called by X. Francotte " the wrinkle of vice " and the " char-
acteristic of delinquency," in about 58 per cent, of delinquents
and in about 11.5 per cent, of normals. In the examination
of the hair, he remarks that the black predominates among
delinquents, and that their beard is thin and scanty. Almost
17 per cent, of delinquents had no beard against 2 per cent, of
the normals.

His second study is on the ear of Andalusian delinquents*
The comparison is made between 150 convicts and 150 persons
having no penal antecedents. His observations can be stated
thus:

Delinquents

Normals

Regular external ear

J-vissilo <-ur
Darwin's tubercle
Ear with adhering lobule
Prominent anti-helix

23 per 100
29 " "
16 " "
3 " "
13 " "

61 per 100
17 " "
14 " «
5 " "

4 ti «

1 In the Adas de la sociedad eapaflola de Historia Natural, vol. XXV.
1 In the Adas de la aociedad espafiola de Historia Natural, vol. XXVT.

1 24] MODERN THEORIES OF CRIMINALITY 117

He also remarked in delinquents the incomplete helix and
the atrophy and hyperthropy of the lobules. In short, more
and more anomalies.

Then, we reach the psychic characteristics.

The psychological point of view predominates in Salillas'
series of works entitled " The Spanish Criminal."

In the volume " Hampa, Picaresque Anthropology," l tl it-
author studies the conditions of Spanish environment, from
which he derives his criminal type; and especially the poverty
of the soil, which determined the classical Spanish knavery,
according to Mateo Aleman's remark that poverty and knavery
come from the same quarry.

An exaggeration of this national characteristic is illustrated
by the criminal hampa in its two r6les of valor and knavery.
A foreign element comes to swell these types, namely, the
gypsy, to whom the author devotes one of the most interesting
sections of his work.

In a second volume of the series, entitled " Language, a
Philological, Psychological, and Sociological Study, with
two Slang Vocabularies," 2 Salillas studies criminal slang.
His point of view differs from Lombroso's theory, which
considers the obscure prattle of delinquents as a philological
archaism depending on and corresponding to the organic and
psychic atavism of the criminal; nor does he explain it, like
Niceforo, as being only a means of defense employed by crimi-
nals to hide their plans and thoughts. The author reaches a
definition of a true anthropological character: " We can
say that criminal slang is the language employed by bullies,
robbers, ruffians, and the like, and is composed of words
adapted to tJie life and thought of this people."

1 Hampa, Antropologia picaresca, Madrid, 1898.

1 El lenguaje, estudio filoldgico, psicol6gico y socioldgica, con dos voca-
bularies jergales, Madrid, 1896.

118 MODERN THEORIES OF CRIMINALITY [§24

The interpretation of these words reveals a most genuine
criminal psychology, that is, it reveals the criminal mind's
way of understanding, feeling, and associating.

The work ends with two slang vocabularies: one taken
mainly from Hidalgo's " Dictionary of Criminal Slang (Ger-
mania)," l and the other being an unedited collection of
phrases of criminal slang (caZo), which represents to-day the
lexicon of the delinquent world.

" Ruffian Poetry," 2 a less important work, belongs also
to the series " The Spanish Criminal."

" Low Life in Madrid " treats also of the psychic char-
acteristics of professional criminals in large centers.

The authors think that the psychic basis of the offender
is analogous to that of the stratum of society from which he
comes. Thus, " the soul of people leading a low life is, in
short, the common soul, having no other peculiarity than the
modifications caused by two chief factors: the wandering
character, and the professional deformities."

The first is generally the result of degeneration or of per-
verted education.

The second are the result of parasite life which determines
always atrophies and retrogressive metamorphoses. This
deformity causes the loss of moral reactions, purity, dignity,
and remorse. Alcohol often intervenes to realize these inhi-
bitions.

The expression of the offender's life is found in what the
authors call " stigmata of low life," revealing marks of his
condition. Of these stigmata, the following are being studied:

a. The nicknames which delinquents receive from their
companions;

b. The slang used by habitual criminals in large centers.

1 Juan Hidalgo, Vocdbulario de Germania, 1609.
*Poe*la rvfianuca; in the Revue Hispanique, 1905.

§24] MODERN THEORIES OF CRIMINALITY 119

This is composed of a limited number of words taken from the
criminal slang (calo), sufficient for their usual proceedings
and mingled with the corrupted forms of ordinary, gross, and
nasty language;

c. Tattooing, considered as a bodily ornament as well as a
personal souvenir of love, vengeance, etc. It must be traced
on one's own body, and with delinquents it is of an obscene,
trivial, or bloody character;

d. The traumatic and pathologic scars, especially the venereal;

e. The alcoholic type, especially in reference to the so-called
" drunkard's mark; " and

f. The professional type, which tends always to reproduce
and at the same time to destroy itself through the need of
mimicry, and which, at times, leads to the opposite characteri-
zation, like the prostitute of modest appearance and the
worthy and bashful beggar.

The various types of professional criminals have their
corresponding psychological portraits. Another series of
psychological portraits of old and famous Spanish criminals
appears in our pamphlet " Criminal Faces."

Moreover, some psychological traits of Castillian vagrants
have been pointed out by J. Diaz Caneja in his work : " Cas-
tillian Vagrants." 2

The most original and modern section of his work is that
dealing with the graphic signs used by vagrant beggars among
themselves.

Dfaz Caneja dedicates a study to the slang and games of
vagrants, one to the typical vagrant, and one to a vagrant
family.

Finally, an anthropological study on the criminal sentenced
to hard labor with all his needs and miseries appears in " Penal

1 Figuras delincuentes, Madrid, 1909.
3 Vagabundos de Castillo, Madrid, 1903.

120 MODERN THEORIES OF CRIMINALITY [§ 26

Life in Spain," * the first and chief of Salillas' works. Of
great interest is the part devoted to " La Casa Galera," a
good study of female prisoners and of the sexual affinity
between prisoners of both sexes.

Special reference to penal life is made in " Low Life in
Madrid," in the pages devoted to the subject of prisoners;
there a description is given of scenes of life in the so-called
Model Prison and in the prison for women.

Section 25. (c) Critique.

After a careful selection, the following works on the subject
can be mentioned: Aramburu's " Modern Penal Science "; *
F. Vida's " Penal Science and the Italian Positivistic School," *
a very dogmatic work; and a few pages by Concepcion
Arena! which are not always to the point.4 Nevertheless,
' she understood criminology in its fathomless contents. " The
man who has offended," she said, " is like the center from
which issue rays touching all moral and intellectual problems."

Section 26. (B) Spanish America.

Less influenced by tradition, the peoples of the other hemi-
sphere offer less resistance to innovations. Only in American
countries the text of judicial sentences contains fragments
by modern criminalists, upon which the judgments are based.*
Mexico and Argentine have made an important contribution
to the science.

In Mexico, the first memoir on the criminality of the

1 La vida penal en Espafia, Madrid, 1888.

• La nueva ciencid penal, Madrid, 1887.

• La ctencia penal y la escuela positiva italiana ; in the Memorias de la
Real Academia de Ciencias Morales y Pollticas, vol. VII, 1893.

« Consult, for example, " Clinica criminal," in the discontinued review
" Nueva Ciencia jurfdica," vol. I, 1893, where that idea is opposed.
•Tank, PhOofophie p6nale, Paris, 4th edition, 1895.

i 26] MODERN THEORIES OF CRIMINALITY 121

country is Macedo's " Criminology in Mexico." l Then
comes Guerrero's important work " Genesis of Crime in
Mexico," 2 a study dealing mainly with environment for
which the characters are furnished by Roumagnac's "The
Criminals in Mexico," and " Sexual and Emotional Crimi-
nals." 3 Worthy of mention is also Martinez Baca y Vergara's
" Studies of Criminal Anthropology." 4

The Argentine Republic, as soon as the movement became
general, saw in its capital a Society of Criminal Anthropology,
due to the initiative of Drago, Pinero, and Ramos Megia,
editors of a " Bulletin " in which were published the first
studies. This was followed by the review " Modern Crimi-
nology," greatly influenced by anarchistic and socialistic
elements. Later appear the excellent " Archives of Psy-
chiatry and Criminology," edited by Ingegnieros and still in
existence.

We have already spoken of the ideas of this prolific writer.
We must not forget his extensive treatise " Simulation of
Insanity," 5 in which he treats of criminal simulation. Drago is
the author of " Men of Prey," 6 a natural history of the most
fearful criminal variety. Moyano Gacitua's " Delinquency in
Argentine according to some Figures and Theories " 7 gives a
thorough estimate of the criminality of the author's country.
De Veyga's " Medico-legal Studies," 8 and Arreguine's " Legal
Studies " 9 contain also interesting monographs.

1 La criminalidad en Mexico, Mexico, 1897.

2 Genesis del crimen en Mexico, Mexico, 1901.

3 Los criminates en Mexico, Mexico, 1905. — Criming terualet y par
tionales, Mexico, 1906.

4 E studios de Antropologia criminal, Puebla, 1893.

5 La simvlacidn de la locura, Buenos Aires, 1903.

6 Los hoinbres de presa, Buenos Aires, 1888.

7 La delincuencia Argentina ante algunas cifras y teoriaa, Cordoba, 1906.

8 Estudios medico-legoles, Buenos Aires, 1879.

9 Estudios legates, Buenos Aires, 1879.

122 MODERN THEORIES OF CRIMINALITY [§ 26

Smaller countries have also made some good contributions.

In Cuba, F. Ortiz* " The Delinquency of Cuban Negroes,"
and " Negro Sorcerers " 1 are important works and first of a
series on " Afro-cuban Hampa." In Costa Rica, A. Alfaro's
" Criminal Archeology " 2 gives a revision of old trials with
allusions to the modern bearings of criminology. In Vene-
zuela, we have F. Ochoa's " Studies on the School of Criminal
Anthropology." 8 In Uruguay, Miranda has a monograph
on " Climate and Crime." 4 In Chile, we find Newmann's
"Stray Pages on the Death Penalty";5 Galdames' "The
Struggle Against Crime "; 6 Braudau's " Repressive Criminal
Policy "; 7 some writings by the late Luis Ross, etc.

1 La criminaliid del negri in Cuba ; in the Archivio di Psichiatria. —
Los Negros Drujos, Madrid, 1906.

a Arqueologia criminal, San Jose", 1906.

8 E studios sobre la Escuela penal antropoldgica, Maracaibo, 1S99.

4 El clima y el delito, Montevideo, 1907.

* Notas sueltas sobre la pena de muerte, Santiago, 1896.

* La lucha contra el crimen, Santiago, 1903.
1 Polilica criminal represiva, Santiago, 1909.

CHAPTER II.
CRIMINAL LAW. — PENITENTIARY SCIENCE.

I. ORIGINS.
Section 27.

IN later years, the field of history has been considerably
enlarged. The ethnographical studies of savage peoples
allow us to cast a retrospective glance beyond the limit of
ancient legal ideas, which were sought until not long ago in
India or in Egypt, in heroic Greece or in primitive Rome.
Thus we have been able to reach indirectly the origins of
humanity stripped of all that civilizations have added, —
the primitive man just as he was in the world.

At that epoch, as Steinmetz remarks,1 punishment is " an
outburst of passion, the first whom it met becoming the victim,
even when nothing in the latter rendered him particularly
responsible for the act committed. Originally, punishment is
aimless; only much later it becomes disciplined and or-
ganized."

The time came, when, according to Hamon,2 reflex action
(instinctive) became reflective action (intelligent). Then,
becoming conscious of itself, it produced as its last florescence
the biological phenomenon, that is, the juridical phenomenon.
D'Aguanno declares that " the feeling of right and wrong
appeared at the end of the quaternary age," 3 that is, at a

1 Ethnologische Studien zur erstcn Entioickdung der Strafe, Lcydcn and
Leipzig, 1894.

a Dtterminisme ei responsabilitf, Paris, 1898.

3 La genesis y la evolucidn histdrica del derecho civil.

124 MODERN THEORIES OF CRIMINALITY [§ 28

period of the formation of the earth's crust when, with the
present knowledge of things, it is not fully demonstrated that
man existed. No matter how vast the extension of these
prehistoric ages may be, to set a definite period in them for
such an event throws suspicion even on what there remains
of exactness; but, in spite of this, it has the positive value of
contradicting with anthropological and ethnical data the
opinion of others who put it further back.

From that period, the mental effort directed to the in-
hibitory discipline of the impulsive force of social reaction is
being exercised against crime, and has been called punish-
ment.1 But, in reality, the history of human thought raised
to the position of science begins, if not absolutely at least
perceptibly to the eye, in very recent times, namely, toward
the end of the 18th century. We find it so near our period,
that between the two there intervenes only the space of a
century. Nevertheless, however little may be covered by a
hundred years of history, penal science has been established
during this time under the double action of criminal law and
penitentiary science, in a dualism which only lately has been
terminated by their fusion.

Section 28. (i) CRIMINAL LAW.

Beccaria and Rttder.

44 The mass of opinions which a large part of Europe honors
with the name of laws are nothing but legislative remains of

1 Cf. Makarewicz' study " L* evolution de la peine " in the Archive
<f Anthropologie criminelle, vol. XIII, 1898. It is taken from the book
" EinfUhrung in die Philosophic des Strafrechts auf Entwicklungsge-
•chichtlicher Grundlage," Stuttgart, 1906, which describes the different
aspects of the old penology until the creation of the modern State,
liakarewici insists upon the necessity of distinguishing between the
reaction of those directly offended by the crime and the reaction of the
social croup, which is the true punishment. Westermarck is of the same
opinion (cf . Der Unpnmg dor Strafe, in the Zetischrift fur Socialwituen-
•chaft, 1000; and his Origins of Moral Ideas, London, 1906).

§ 28] MODERN THEORIES OF CRIMINALITY

an ancient conquering nation, compiled by the order of a
prince who ruled twelve centuries ago in Constantinople,
mingled later with barbarous customs, and wrapped in an
entangling farrago of obscure commentaries. Even to-day,
the spirit of routine, as fatal as it is general, sets down one of
Carpzovio's opinions, an old practice advocated by Claro,
or a torture invented with barbarous complacency by Fari-
aacio as principles to be safely followed by those who ought
to tremble when deciding on the life and affairs of their fellow-
citizens " (Beccaria).

Such was the situation at the end of the 18th century.
But, under the already dying barbarous institutions there
throbbed the spirit of reform. The Encyclopedists were pre-
paring by their sayings, deeds, and writings a new criminal
law; 1 and there, in Milan, a remote disciple, Cesare Bec-
caria (1738-1794), voiced their mind in the small pamphlet
*' Crimes and Punishments." 2

This work was the true germ of our criminal law. Ellero
remarks that of the eighty more or less radical practical
propositions which it contains, more than seventy have been
adopted in our common laws, beginning with the abolition
of torture and of capital punishment.3 When the memorable
selection from the punishments accumulated by history was
realized, and their number was reduced to the minimum
needed for social defense, thus assuring the individual against
the excesses of society, then began the decadence of estab-
lished penology.

In the meantime, a more radical transformation was being

1 On this subject, cf. Overbeck's " Das Strafrecht der franzosiachen
Encyclopadie," Karlsruhe, 1902.

a For the writings and works of the famous Milanese, cf. Cantu's " Beo-
•aria e il diritto penale," Florence, 1862.

8 Quoted by Ferri in " I/opera di Cesare Lombroeo e la giustizia
penale," in the volume in honor of Lombroso, Turin, 1906.

126 MODERN THEORIES OF CRIMINALITY [§ 28

prepared. Karl Rtfder (1806-1879) begins, in 1839, a series of
writings aiming at bringing the conception of penology back
to the universal law of tutelage over deficient beings.1

At the basis of this doctrine we find, on one hand, the state
of the will out of harmony with justice, pointing out the crime
in the delinquent; and, on the other, the consequent neces-
sity of a tutelage — as in any other abnormal state of the
individual, even exercised in the way required by each, -
" not only in its restrictive sense of decreasing the criminal's
exterior freedom, so as to diminish the stimulus and the oppor-
tunities that cause him to persist in his condition, to relapse,
and to grow worse; but also, in its positive sense — which is
always the first — of protecting the development of his
freedom, the repression of his will, the regeneration of his
conscience, the restoration of the sense of justice in his soul,
and his energy and strength in the realization of his deeds.'*

To quote from one who has best interpreted the author's
thought, " this restriction of the delinquent's freedom which
removes all the elements that might induce him to persevere
in his degradation; this educative discipline of his reason;
this true medicine for the patient, whose affliction counter-
acts in him and in all the normal course of the juridical life,
is what Roder means by punishment." Thus we can under-
stand why at the beginning of his scientific work he could ask
himself whether punishment was to be an evil; although,
according to Carnevale, his real question was whether punish-
ment ought to be a punishment. " Whether the delinquent
will consider this punishment — this tutelage — as an evil
or as a blessing, will depend only on the state of his mind.
The moral temper of his sentiments will make him capable

1 Rflder's first memoir is entitled "Commentatio an poenam maltim
MM dcbeat," Gisae, 1839. On the personality and works of this penalist,
cf. F. Gincr's " Karl Rxkler," in the Revisla general de Legislacidn y /u-
riMprudtncia, 1880.

§ 29] MODERN THEORIES OF CRIMINALITY 127

or incapable to know his true interest, his aversion from the
remedy being always in inverse ratio to that inspired by his
crime. To consider punishment an evil for the delinquent,
would be the same as to agree with the patient when through
ignorance he detests the medicine, or with the child when
he cries because forced to go to school."

Modern criminalists have taken offense at this illustrious
thinker. His name seems forgotten, and his doctrine badly
understood. Tarde's " Penal Philosophy " does not mention
him once; while it devotes entire pages to writers without
whom penal history would not suffer in the least, pthers,
like Garofalo, speak of " the absurdities of the reformistic
school " without being acquainted with it.1 It is to Roder
that we must trace the beginning of the movement of penal
transformation, which, changing punishment into tutelage,
makes of it a branch of reformatory education, Etoiatry as
De Sanctis 2 proposed to call it.

Section 29. (2) PENITENTIARY SCIENCE.
Howard.

This reformation could prosper but little in a juridical,
dogmatic, and conventional environment. In fact, it would
have probably failed if the accepted distinction between
penal and penitentiary function had not been allowed to
spread in a beneficent and moral atmosphere.

1 Cf. Criminalogia, p. 162 of the Spanish edition, and the correspond-
ing note of the translator which rectifies it. It is well known that Karl
Roder, Krause's disciple, has exercised a certain influence in Spain
through the so-called Krausist generation. His works were translated
by Romero Gir6n and F. Giner. On the solicitation of Don Nicolas Sal-
mer6n (1873), Minister of Justice, Roder edited for our country several
reports on penal and penitentiary reforms, one of which can be found
as an appendix to his work: Las doctrinas fundamentales reinantes sobre
el delito y la pena en sus interiores contradicciones, Madrid, 1877.

2 L'Etoiatria, le careen e i riformatori, in the Rivista di discipline car-
cerarie, 1907.

128 MODERN THEORIES OF CRIMINALITY [§ 29

While Beccaria and the philanthropists of the end of the
18th century, aided by the avenging arm of the French
revolution, were causing the radical transformation in penal
legislation from which have come our present codes, the
Englishman John Howard (1726-1789) was beginning his
penitentiary reform.1

The origins of penitentiary science are characterized by
more sentimental traits than those of the reform of penal
laws and prosecution. The journey over the " geography of
grief," to which Howard devoted the best portion of his life,
and which caused his death — for often one dies for what he
lives — means the daily practice of a work of charity if not
of asceticism. More personal and intimate than " The state
of the prisons in England and Wales (1777)," the " Diary "
of his activity reveals in every page both features. Peni-
tentiary reform is not, in its origin, a work of justice nor one
of science — Howard detested the latter, as in the case of
geological investigations — but one of charily and mercy.

It was only later that the reform assumed the characteristic*
of the first two. International Congresses began to be held.
After those of Frankfort (1846 and 1857) and Brussels (1847)
there followed:

I. London, 1872.
II. Stockholm, 1878.

III. Rome, 1885.

IV. Saint Petersburg, 1889.
V. Paris, 1895.

VI. Brussels, 1900.
VII. Budapest, 1905.

1 The principal work on the life and work of John Howard is that
by R. W. Bellows, published in the volume " Prisons and Reformatories
at borne and abroad/' London, 1872. The International Penitentiary
Congress of Saint Petersburg (1889), which coincided with the centenary
of Howard's death, was a continual commemoration of the famous man

§ 31] MODERN THEORIES OF CRIMINALITY 129

The movement gave rise to national societies, like the
"Howard Association" in England; "The General Prison
Association " in France; and the " American Prison Associa-
tion " in the United States. Reviews were founded, like the
44 Revue Penitentiare " in France, the " Rivista di Discipline
carcerarie " in Italy, the " Revista Penitenciaria " in Spain,
etc.

Of the modern works which give an idea of its progress,
we will mention: Cuche's "Treatise of Penitentiary and
Legislative Science " ; 1 Delvincourt's " The Struggle against
Criminality in our times " ; 2 Franchi's " Prison Discipline
and Institutions before and after Lombroso";8 Boise's "The
Science of Penology," etc. 4

II. TENDENCIES.

Section 30.

Modem penology, therefore, is the outcome of the two
aforesaid currents. In its actual state, three tendencies are
noticeable: 1. The traditional; 2. The reformistic; 3. The
radical.

Section 31. (O TRADITIONAL.

Makarewicz.

The traditional tendency might be characterized: (a) by
the claim of opposing crime only by means of punishment;

who inaugurated prison reform. The Russian delegate, Galkine Wraskoiy,
published an interesting biographical pamphlet, and Professor Spasso-
wicht began a series of lectures on the same subject, ending them with the
following words: " Is not his memory worthy of veneration in every re-
spect, and even worthy of a kind of worship on the part of modern com-
munities? "

1 Traitt de Science et de Legislation penitentiaires, Paris, 1906.

2 La lutte contre la criminalitc dans les temps modernes, Paris, 1897.

3 Le discipline carcerarie e gl'istituti prima e dopo Cesare Lombroso,
found in L' opera di Cesare Lombroso, Turin, 190G.

4 The Science of Penology, New York, London, 1901.

130 MODERN THEORIES OF CRIMINALITY [§ 32

(b) and by understanding the latter as a retribution — with-
out any other aim — of crimes.

We say " might be characterized " and not " is character-
lied," because most likely this conception does not actually
exist in a complete and perfect form. Like extinct fauna
and flora, it is no longer of this world.

Nevertheless, it is important to point out some vestige,
some atavistic mark which reappears in contemporary writers.
Thus, Makarewicz, in his " Evolution of Punishment," *
writes: " The reaction against crime is AND WILL ALWAYS BE
malum passionis quod infligitur propter malum actionis, when
the member of a community commits an act detrimental to
all." Modern criminalists, those who can really be called
innovators — Lombroso, and especially Garof alo, — when
treating of the application of remedies to crime, deserve the
name of reactionaries more than that of conservatives.

According to Dorado,2 " the idea of an intelligent social
defense, which carries with it the conception of punishment as
something good for all, including the guilty, and perhaps more
for him than for any other, has not yet entered in a thoughtful
way the positivistic school of Italian penology; and this is
perhaps its greatest fault."

Section 32. (2) REFORMERS.
Liszt, Prins, Van Hamel, etc.

The reformers are noted for planning a kind of " double
entry " penology. They advocate the traditional penal
measures for certain delinquents only with a repressive aim,
while for others they reserve preventive measures against
relapse and imitation, in accordance with the teachings of
modern criminology.

wlution de la peine ; in the Archives d'Avthropologie criminelle
Tol. XIII, 1898.

» Problemat de Derecho penal, Madrid, 1895; vol. I, p. 380.

§ 32] MODERN THEORIES OF CRIMINALITY 131

The reformers are in the majority everywhere. Among the
most noted, we may mention the late Tarde and La
in France; Prins in Belgium; Stoos in Switzerland; Van
Hamel in Holland; Liszt in Germany; Xucker in Austria;
Fayer in Hungary; Drill in Russia; Typaldo Basia in Greece;
M6ndes Martins in Portugal; Alcantara Machado in Portu-
guese America, etc. In some countries, special reviews have
been founded, like Liszt's " Zeitschrift fiir die gesammte
Strafrechtswissenschaft "; Stoos* " Schweizerische Zeitschrift
fur Strafrecht," or " Revue penale suisse "; and the " Revue
de Droit penal et de Criminologie " in Belgium.

In Italy, from Lucchini to Ferri, from the " Rivista Penale "
to the " Scuola Positiva," the various shades of reforms suc-
ceeded in giving birth to a group called the " Third School "
under the leadership of Alimena and Carnevale. This school
represents a movement of reaction against the early exag-
gerated positivism, which attenuated the existing code by the
addition of the innovators' principles. In our days, Manzini
could be said to approach this tendency. If we accepted this
nomenclature — which has almost disappeared — we should
give the name of " Fourth School " to a secluded group, who,
under the leadership of Pozzolini, edit the more recent " Ri-
vista di Diritto penale e Sociologia criminale." In fact,
aside from Lucchini (who remains alone and unshaken and
whose dissidence rather suggests personal animosity) and
others impossible to mention, the old teachers, like Brussa,
Stoppato, Civali, and the young ones, like Alimena, Carnevale,
Rocco, Manzini, Pozzolini, Olivieri, Franchi, Viazzi, Florian,
Zerboglio, all show a reciprocal movement, whose different
shades of opinions would be difficult to classify.

Finally, in 1889, Liszt, Prins, and Van Hamel founded the
" International Union of Criminal Law " for the promotion of
reform. The following by-laws were drawn up:

132 MODERN THEORIES OF CRIMINALITY [§ 32

I. The " International Union of Criminal Law " holds that
criminality and the means of repression must be examined
both from the social and the juridical point of view. There-
fore, it aims at the realization of this principle in the science
of criminal law and in criminal legislation.

II. The Union adopts, as a fundamental basis for its
activities, the following propositions:

1. The mission of criminal law is to combat criminality
regarded as a social phenomenon.

2. Penal science and penal legislation must therefore take
into consideration the results of anthropological and socio-
logical studies.

3. Punishment is one of the most efficacious means the
state can use against criminality, although not the only one.
Punishment must never be isolated from other social remedies,
nor must preventive measures be neglected.

4. The distinction between occasional and habitual crimi-
nals is essential in theory as well as in practice, and must
serve as the basis for criminal law regulations.

5. Since repressive tribunals and penitentiary administra-
tion have the same ends in view, and since the sentence only
acquires value by its mode of execution, the Union considers
the distinction which the modern laws make between the
court and the prison as irrational and harmful.

6. Punishment by deprivation of liberty justly occupying
the first place in our system of punishments, the Union gives
its special attention to all that concerns the amelioration of
prisons and allied institutions.

7. So far as short sentences are concerned, the Union con-
ndera that the substitution of more efficacious measures is
not only possible but desirable.

8. So far as long sentences are concerned, the Union holds
.that the length of the imprisonment must depend not only

§32] MODERN THEORIES OF CRIMINALITY 139

on the material and moral gravity of the offense, but on the
results obtained by the treatment in prison.

9. So far as incorrigible habitual criminals are concerned,
the Union holds that, independently of tin- gravity of the
offense, and even with regard to the repetition of minor offenses
the penal system ought before all to aim at putting these
criminals for as long a period as possible under conditions
where they cannot do injury.

III. The members of the Union adhere to these fundamental
propositions.

This seems a creed, a confession of faith, or a decalogue
of the Penal Code; for, through a strange coincidence, ten
are the propositions devoted to it. The clause of acceptance
that follows them must have given rise to some objections
and criticisms, most of them against the propositions them-
selves, others against the presumptuous appellation by which
they were baptized, and still others against the right as.-
by some of imposing them on the nations.1

But an International Union of Criminal Law finds its
justification in our days in as much as such activities in great
questions break down boundary lines. Institutes, Leagues,
Congresses, standing committees, etc., are products of the
present state of culture. There was no reason why the struggle
against crime was not to find in a Union the strength which it
needed, as Foinitzky has pointed out.2

On the other hand, the Union hastened to explain the
meaning of what might have been considered an exacting
dogmatism. It declared in the first Bulletin 3 that its by-laws

1 Cf. Alb^rique Rolin's L' Union Internationale de Droit Final, «es
bases fundamentals, ses travaux pendant la prer>, --atettr.v
de Droit Ptnal ; in the Revue de Droit International et de legislation com-
par6e, XXI, 110.

2 Juriditzeski Westnik, Moscow, 1SOO.

8 Les tendences de V Union ; and Les deux prcmiires campagnca dt
V Union.

134 MODERN THEORIES OF CRIMINALITY [§ 32

were not the result of a preconceived doctrine, but the basis
of the Union's activity and the guide for its task. It was
adduced that whoever aspires to a change of legislation must
set down his object clearly, plan it, even if it be in rough
outlines, and state the reasons for its desirability. It was
added that in order to come together and discuss matters
certain principles in common were needed, and that, after
all, the by-laws could always be revised.

Believing this, the Union soon counted among its members
penalists of the most opposite opinions and the leaders of
the most hostile schools, from the Hegelian T. A. Berner to
the positivist E. Ferri.

Yet, it was found necessary to revise the old by-laws
by suppressing the minute enumeration of the propositions
and by drawing up a new formula of a general character
to which all could freely subscribe. After the discussion
held at the sessions of Linz and Lisbon hi 1895 and
1897, the second article of the by-laws was made to read as
follows:

44 The International Union of Criminal Law holds that
criminality and the means of combating it must be considered
from the anthropological and sociological side as well as from
the juridical. Its aim is to pursue a scientific study of crimi-
nality, its causes, and the means of attacking it."

This study was to be made at the yearly sessions of the
Union. But, since an international legislator is bound to
appear always as a phantom, there arose in the bosom of the
Union national groups whose activity has proved more effi-
cacious and adequate for the legislations of the various
countries they represent.

The Union publishes its Bulletin,1 and edits a long treatise

1 Mitteilungen der Intemationalen Kriminaliatischen Vereinigung. —
Bulletin de V Union Internationale de Droit Penal.

§ 33] MODERN THEORIES OF CRIMINALITY 135

of comparative penal legislation which is indefinitely con-
tinued by means of supplements.

All this has been accomplished, but the importance of the
Union is declining if not already dead.

In America, on the other hand, a similar institution has
been founded lately. The American Institute of Criminal
Law and Criminology was founded in 1909, in Chicago,
under the presidency of John H. Wigmore, Dean of the
Northwestern University Law School.

Section 33. (3) RADICALS.
Vargha, Dorado, Tolstoy, Solovicff, etc.

This school, like the conservative, constitutes another
minority. It arose under the same circumstances as the
latter and is already on the decline. The radicals repudiate
the double entry penology of the reformers and develop only
its preventive side.

An illustration of this is found in Vargha's " The Abolition
of Penal Servitude." l Proposing to study the struggle for
the reform of criminal law, this writer collects them only into
two groups, namely, those that defend and those that oppose
the conception of punishment as an evil and a chastisement.
He also analyzes the evolution of the fundamental ideas upon
which the criminal judiciary bases itself into the following
phases answering to the same contrast:

a. Unlimited vengeance;

b. Limited vengeance as a material compensation for crime,
that is, the law of retaliation, which hi itself constitutes a
step in advance;

c. Limited vengeance as a moral compensation;

d. Safety without respect for the personality of the de-
linquent;

1 Die Abschaffung der Strafknechtschaft, Graz, 1896.

136 MODERN THEORIES OF CRIMINALITY [§ 33

e. Safety with respect for the personality of the delinquent.

This is the feature that characterizes criminal law reform.
The desire for vengeance meets with no official recognition,
and penal servitude is on the point of disappearing. The
delinquent's personality is respected; and the penal reaction
consists in a mere limitation of the freedom of movement
and action of the delinquent who is a menace to society.
Thus is fulfilled the double function of protecting society and
of guarding the delinquent.

Contemporaneously with Vargha and even preceding him
come Dorado's series of persistent works: " Modern Juridical
Problems," " Studies on Preventive Criminal Law," " Bases
for a new Criminal Law," " New Penal Tendencies," " Medi-
cal Experts and Criminal Justice," " Criminology and Penol-
'ogy," l all of which were summed up in a paper sent to the
Congress of Criminal Anthropology at Amsterdam, and
entitled: " Is punishment, properly speaking, compatible
with the data of criminal anthropology and sociology? "

Positivism which took form in Italy under the influence
of Ardig6 and Sicilian!, and organic correctionalism which rose
in Spain under the influence of Giner have been happily
combined by Dorado, thus forming a fusion perhaps never
realized until now.2 " Summarizing our thought in a few

1 Prdblemas juridicos contempordneos, Madrid, 1893. — Estudio* de
Dcrecho penal preventive, Madrid, 1901. — Bases para un nuevo Derecho
penal, Barcelona, 1902. — Nuevos derroteros penales, Barcelona, 1905. —
Los pertios medicos y la justicia criminal, Madrid, 1906. — De Crimi-
nalogla y Penologta, Madrid, 1906.

* F. Giner's penal ideas are condensed in the following extracts from
PrindpiM de Derecho penal (written in collaboration with A. Calderon,
Madrid, 1873, p. 113): "The compensation for the juridical order dis-
turbed by crime is called punishment. Punishment is, then, the reaction
of the juridical activity against crime, having for object the re-estab-
lishment of violated justice. Since punishment must, act upon the cause
of crime, its whole aim must be to correct the perverted will of the eri ra-
tal (as far as possible by exterior mean*, if it is a quest ion of social law).

§33J MODERN THEORIES OF CRIMINALITY 137

words, we can say that the penal system of the future (and
even of the present; for, without the efforts of any one, it is
gradually being formed thanks to that activity, which to use
a paradox, deserves to be called the wise labor of the uncon-
scious) must be a kind of fusion of the corrective and the
positivistic schools, the spirit of the former imparted to the
mass of badly ordered data of the latter. The metaphysical
and narrow mold of the corrective school must be widened
by the young and active vitality which the positivistic school
derives from experimental observation; or, in other words,
by the experimental synthesis, the reduction of what were
only inspired intuitions of great poets and abstract specula-
tion, into a decided realistic, scientific, philoso-experimental
system based on the certainty derived from the observation
of facts, their comparison, and the deductions derived there-
from." *

Dorado is careful to warn us that according to the penal
Astern he conceives, " severe measures may be used whenever
required . . . ; but that they are not punishments, that is,
they are not forms of reaction against the crime committed,
but a part of the protective system itself." 2

Therefore, punishment is not an evil as it has been supposed; since it is
not an evil to correct the will of the pervert, even if he does not acknowl-
edge and accept it as a blessing. — The basis for punishment is found
in the crime through which the criminal has shown his inability to freely
guide his own life. Hence the tutelar nature of punishment, which is
nothing but the exterior action of protection and vigilance employed
by the State in order to reassert the will of its members. Punishment,
being a reaction against crime always in the form of abuse of freedom
must consist above all in an exterior limitation of this freedom of which
the criminal does not know how to make a rational use. As long as
punishment has this in view, it becomes a right of the criminal himself,
even if the abnormal condition of his mind does not allow him to ac-
knowledge it, in the same way as tutelage is a right of the child even if
he denies and opposes it."

1 Problemas de derecho penal, vol. I, Prefaro.

a A paper presented before the Amsterdam Congress.

138 MODERN THEORIES OF CRIMINALITY [§ 33

At this point, a very radical tendency branches off —
based on the principle of resist no evil by violence — which
excludes all reaction against crime except oral persuasion.
This tendency which favors abolition altogether appears in
modern philosophy at times satisfied with the spontaneous
repressive effects of the natural consequences to which the
offender is exposed through his crime ( Wille) ; at other times
adopting as the only measure a system of publicity which may
strengthen public sentiment against crime (Popper). The
tendency culminates in Tolstoy, who, according to Golden-
weiser,1 has illustrated in his " Resurrection " the paradox
of considering " Punishment as a crime and crime as a punish-
ment." Clarence Darrow develops the same principle in
"Resist no evil " (Chicago, 1903). The influence of Tolstoy
can be detected also in Molinari's " The Decline of Criminal
Law";2 and perhaps even in Reich's "Criminality and
Altruism." 3

SoloviefTs article " The penal question from an ethical
standpoint " 4 discusses in a masterly way this ultra-radical
tendency and traces it to its sources.

He claims, in short, that in the presence of any crime we
are moved by two distinct sentiments: profound indignation
against the criminal and great pity for the victim. Yet,
when we consider things in the light of Ethics and find that
every offense is unfailingly connected with a moral injury in
the soul of the offender, then we must agree that through the
fall of the human dignity which the offense reveals in him, he
becomes worthy of as much pity and compassion as the victim
himself.

1 Le crime comme peine, la peine comme crime, Paris, 1904.
* n tramonto del diritio penale, Mantua, 1904.
1 Criminalitat und Altruvtmua, Anisberg, 1900.

4 La question pfnaleau point de vue Ohique; in the Revue international*
d* Sociology, 1897.

§ 33] MODERN THEORIES OF CRIMINALITY 139

Solovieff finds two classes of men opposing these ideas. In
the first place, there are those who deliver I lie aggressor as a
being deprived of rights and considerations to the defense
and vengeance of the offended party; and secondly, those
who going to the other extreme sustain that the offender must
be brought back to reason by oral persuasion \vitliout any
other individual or social defense on the part of the offended
party.

Taking up the first class, the author examines the histo-
manifestations of vindictive punishment and proves that it
is still in force although on the point of disappearing. Puni>h-
ment in our days is a deferential and ceremonious vengeance
without subsequent complications on account of the solidarity
and cohesion of its advocates. Some men in France and Ger-
many believe that the penal function has reached the last
degree of its evolution in the maximum of its moderation.
But, if so, what is the cause of sucli a unanimous demand
for penal reform? Truly, to-day we punish less and with less
severity; but, since the selection of sentiments proceeds in
proportion to this process of mitigation of punishments, the
offense of the former persists in a larger degree and with less
injury. " What remains of vengeance and reprisal is still
considerable and is being defended with such tenacity by
some thinkers, that posterity," says Solovieff, " will be
astonished in reading of them as we do to-day when we
read Aristotle's ideas on slavery."

The second group exalts the respect due to the person of the
delinquent. Changing the ethical point of view to a mystical
one by the principle of resist no evil by violence, they deny any
other repressive and preventive measure except oral per-
suasion. Here Solovieff refers to Tolstoy, for whom tin's
principle is so absolute that he would not stop a motl
arm on the point of taking her child's life. The basis of this

140 MODERN THEORIES OF CRIMINALITY [§ 33

doctrine is the laissez faire of Providence, whose designs are
unsearchable. A man saved from violent death to-day may
prove a criminal to-morrow. A more complicated case is the
following: A man has been forbidden by force to enter a
tavern believing to do him good. But, if he had been allowed
to follow his inclination, wine would have excited his sensi-
bility and, on coming out and meeting a dog half frozen by
the cold of the night, he would have taken it into his arms and
revived it. As he saved the animal from death, in time he
would save a little girl from drowning who had been destined
to become the mother of a great man. By not allowing that
man to enter a tavern, the dog would have died of cold, the
little girl would have drowned, and a great man, a genius,
would not have been born. But, why not continue the process,
asks Solovieff. Perhaps the great man, the hero, might have
caused great misfortunes to humanity. The doctrine of the
unforeseen and the unknown ends by destroying itself.

The ethical principle demands an effective reaction, which,
although not expressed in works, will still remain moral.
But, the deprivation of liberty by imprisonment is an inferior
form of reaction. Some day we shall look upon prisons as we
do upon the psychiatric institutions of a century ago. "A
public tutelage composed of competent men for the correction
of the guilty is the only idea of punishment or of positive
reprisals that the ethical principle can admit. It is only
when the penitentiary system shall be based on this principle
that it will become more equitable, humane, and efficacious
than it is at present."

Aa a precedent and illustration of this transformation we
are often referred to what happened in the treatment of the

We will only quote what Kropotkin says in his " Prisons **: l
• Let Pritoru, Paris, 1890.

§ 33] MODERN THEORIES OF CRIMINALITY 141

" In former times the insane were considered as pos-
sessed with evil spirits and were treated accordingly. They
were chained in infected rooms and tied to the walls like wild
beasts. Pinel, a man of the great Revolution, came and
dared to break their chains and treat them as brothers. The
guards warned him to be careful lest they should devour
him; but Pinel dared in spite of their warnings and the men
who were believed to be wild beasts stood around him proving
by their attitude how right he was in forming a better opinion
of human nature, even when the mind is darkened by in-
firmity.

" From that time the cause of humanity was won. The
insane were no longer enchained.

44 The chains disappeared; but the asylums, a new form of
prison, remained, developing within their walls a system as
accursed as that of irons.

" Then, peasants and not doctors of Gheel, Belgium, found
something better. They said: ' Send your insane to us and
we will give them absolute freedom.' They received them in
their families, gave them a place at their own table> interested
them in the care of the land and of the flocks, and made them
share in the feasts of the field with their young people. * Eat,
work, amuse yourselves in our company, run in the fields,
be free! ' This was the system and the science of the Belgian
peasant.

" Freedom produced miracles. The insane recovered.
Even the unfortunates afflicted by an incurable organic injury
became tractable and docile, members of the family as the
rest. The infirm brain acted always abnormally, but the
heart was right and nobody found occasion for complaint.

" People cried at the miracle. The cures were attributed
to some saint or to some Virgin. But the Virgin was Freedom,
and the saint, the work in the fields and brotherly treatment.

142 MODERN THEORIES OF CRIMINALITY [§ 34

44 The system found imitators. In Edinburgh, I have had
the pleasure of meeting Dr. Mitchell, a man who has devoted
his life to the same treatment of freedom in Scotland. He
has had to overcome many prejudices and has been opposed
with the same arguments used against us; but he has won.
In 1886, there were already 2,180 insane in Scotland dis-
tributed among families, and scientific commissions highly
praise the system. No medicine can compete with freedom,
free work, and brotherly treatment.

" In one of the boundaries of the ' vast space between
mental infirmity and crime ' mentioned by Maudsley, freedom
and brotherly treatment have done wonders. Why could
not the same happen at the other extreme boundary where
to-day we place crime? "

III. APPLICATIONS
Section 34- (i) RESPONSIBILITY.

Whether criminality is due to atavism, degeneration, or
pathology constitutes a question of pure criminal anthro-
pology. Whatever be the conclusion reached, as long as
the phenomenon is due to a cause, we are justified to
fask: Where shall we fasten responsibility? And for whom
shall we reserve the specific social reaction called pun-
ishment?

This constantly debated question 1 is proving unusually
troublesome for our contemporaries who have not been able
to look at it from the correct point of view.

Before the Congress of the " International Union of Criminal
Law " held at Lisbon in 1897, Garraud presented the following

1 Loening has started the publication of its history, entitled: Geschi-
dde for StrafrecWicfum Zurechnungslehre, Jena, 1903. The first volume
foos no further than Aristotle.

§ 34] MODERN THEORIES OF CRIMINALITY 143

r£sum£ of the modern theories of the basis of penal responsi-
bility:

Classical Moral and social responsibility, based upon
the notions of obligation, free will, and
personality.

, Contract: Fouillee.

Mere social respon-J Based upon the rio-
eibility. j tionofthe defense of

1 the social organism.

Theories of
responsibility.

theory

Modern
theories

Social and moral re-
sponsibility with-
out the suppres-
sion of free will.

Through real and

nal identity

ami through social

: Tarde.
Through the nor

mality of the deed:
Liszt.

Social and moral responsibility, but re-
duced to a simple noumenon.

Garraud forgets the integrity of intelligence upon which
Ferri looked with favor at the beginning, the integrity of the
whole character advocated by J. Vida in his " Criminal Re-
sponsibility and the Causes that Exclude or Modify it," *
Alimena's susceptibility of feeling psychic coercion, etc. He
forgets also the strange theory of semi-responsibility set forth
by the jurists against the psychiatrists, and which does not
lack the support of some clinicians.2

The theories of real identity and social similarity and the
theory of the normality of the deed are the two most original
attempts to replace the old basis of responsibility, possessing
as they do a moral trait which may be perhaps a mere con-
ventionalism.

The first was propounded by Tarde in his " Penal Phil-
osophy." This thinker believes that the affirmation of free
will is in contradiction with science. But, it is not less true —
he adds — that to deny it is to contradict conscience.
What is, then, the basis for responsibility? Not accepting

1 La imputabilidad criminal y las causas que la exduyen 6 modifican,
Salamanca, 1891.

2 Grasset, Demifous et demiresponsables, Paris, 1907.

144 MODERN THEORIES OF CRIMINALITY [§ 34

the prevailing notion of society as an organism, Tarde does
not see in the phenomenon an effect of its irritability as it is
generally conceded (Letourneau, Guyau, Hamon, Schiat-
tarelli, Fern, etc.). On the other hand, he thinks that we
need a system having a moral basis and characteristic, ani-
mated and strengthened by modern science. This system
bases responsibility and the penal function upon the notion
of real or personal and social identity. Puglia has accepted
this fully in his " Genetic Principle of the Right to
Repress." '

" Responsibility," says Tarde, " not only supposes an act
hostile to the general utility or will of the co-partners, but
also a crime judged from its material aspect. It supposes,
moreover, two essential facts: personal identity and social
identity. The combination of both positive notions, which
are never illusory, affords the complete explanation of both
moral merit and demerit. In order that the author of an act
injurious and contrary to the wish of others may realize the
feeling of guilt, and in order that in its spectators and judges
there may arise the corresponding sentiment of indignation,
censure, or scorn, the two following conditions are necessary:
In the first place, the author of the deed must judge himself
or be judged the same at the time he accuses himself or is
accused as when he committed the act; in other words, he
must attribute to himself with or without reason the act in
question, and not because of organic or physical causes outside
of his person. In the second place, it is necessary that the
man judge himself or be judged as forming part of the same
society as the judges and the victim; in other words, responsi-
bility exists only when the author of the deed preserves his
identity (real or personal identity), and when between him and

1 // principle genetico del diritto di reprimere, in the Scuola Positive^
January, 1892.

§34] MODERN THEORIES OF CRIMINALITY 145

the social group to which he belongs there exists a sufficient
number of resemblances that will make him responsible.
The working of the system is illustrated as follows:
a. Irresponsibility. — Through lack of personal identity. —
Why is the hypnotized man irresponsible? Is it because he is
not free? No; he is irresponsible because he has momentarily
lost his identity, and because it is not he himself that acts
but he altered by suggestion. Through lack of social identity:
deaths, devastations, and pillages brought about by a tribe
or a horde against another at the time when social unity,
restricted to the small number of persons that composed it,
caused them to resemble very much one another and differ
much from their neighbors. Through lack of personal and social
identity : insanity which alienates, separates, and destroys both
identities. (But, can this principle be applied to congenital mad-
ness, the often quoted moral insanity? The morally insane
besides being insane can be a man deprived of the fundamental
sentiments of morality, but still identical to himself from birth
as writers describe him. Moreover, as Garofalo remark s.
if the criminal who becomes insane loses his identity and
becomes irresponsible, the criminal who was insane before
the crime and continued so afterwards preserves his identity
and would be responsible for his deeds. And once more,
could not the principle of irresponsibility through lack of
identity be applicable to all emotional acts and to those
outbursts which are qualified by phrases like being beside
oneself, being possessed, etc. Certainly, this interpretation,
which is not very pleasing to Tarde's uncompromising re-
pression, would receive the support of modern mental pathol-
ogy to which a conception analogous to that of Maudsley's
medial zone explaining the boundaries and relations between
the sane and the insane seems already too limited and rigid.
In short, what can be said of personal identity is that it is

146 MODERN THEORIES OF CRIMINALITY [§ 34

never completely lost, not even in the worst case of insanity;
that it fails at every step (normal and abnormal?); and that
it is not easier to answer the verdict's question whether the
culprit was the same before as after the crime than to say
whether he was free or not; although, at bottom, the
author thinks that the question has been one of identity and
not oi free will).

b. Mitigated responsibility. — Infanticide is cited as an
example of mitigated responsibility; for, " the newly born
not participating hi the social life of the family, its death is
far from producing the same horror as parricide." There is
also mitigated responsibility for international crimes and
misdemeanors.

c. Aggravated responsibility. — Through personal identity. —
" If, in the case of flagrante delicto, it has been felt always
convenient to become indignant and to punish more severely
than when the culprit falls into the hands of justice after a
long time, is it not because, in the first case, personal identity
is more evident and in its maximum intensity? " (But are
we not confusing here the identification of the culprit with the
identity of his psychic personality?) Through social identity,
like cases connected with the family, namely, parricide,
fratricide, etc. (But family identity is not always aggravating.
On the contrary, it excuses at times, as in the case of domestic
thefts in our Code. It seems that the author forgets here
what he so carefully tries to differentiate in the first
chapter of " Criminal Law " on The transformation of the
law, namely, that in the penal function by the side of
vindictive reaction against foreign aggressors there exists
protection and, at times, pardon for relatives); through
functional identity, as professional comradeship; through
national identity t etc.; all of which are aggravated, some
through law, others through custom.

§ 34] MODERN THEORIES OF CRIMINALITY 147

The theory of the normality of action, which to-day is
advocated by Liszt, appears for the first time with the un-
justly forgotten Poletti, a philosopher and a criminalist of
noble and refined manner of thought.

In his works,1 Poletti studies crime and punishment " in
relation to the economics of human nature," because on this
subject, says he, " we still find ourselves in the times of Grotius
and even of the Romans."

Approaching the question from this point of \i-
is recognized by signs that leave no room for doubt. As soon
as it is committed, an unusual and spontaneous activity is
being displayed. The law which prrsiTvrs human equilibrium
displays a series of movements of defense and resistance by
which society and the individual, yielding to a natural im-
pulse, try to repress the offense, harm, and danger caused by
the crime, and to erase its sad impression and immoral in-
fluence. " The general features that enable us to recognize a
criminal action cannot be derived from our sentiments, social
interest, or the idea of justice itself, but from som*
naturally more complex, more vast and at the same time more
invariable and certain." The essential feature of crime con-
sists in its opposition to the most intimate and delicate attri-
butes of our nature, " to that wonderful combination of ten-
dencies, ideas, and sentiments found in the individual and in
society."

Thence, a conclusion of the greatest interest. Tin
victim of any crime is the delinquent himself; for, his deed
betrays the abnormality of his constitution through lack of

1 Poletti, II diritto di punire e la tutela penale, Turin, 1863. La leggs
universale di conservazione e la repressione dci ilclinqurnti; II delinquent*,
cenno d' Antropologia criminate, Udine, 1875. — I^egge empirica della
criminalita, 1881. — La persona giuridica nella scienza del diritto penale,
ISSQ. — H sentimento nella Rcienza del diriUo penale, 1887. —
normale come base della responsabUita dei delinquents, 1889.

148 MODERN THEORIES OF CRIMINALITY [§ 34

44 that powerful shield which preserves other men in the
tranquillity of their existence," and of " the harmony and
equilibrium between effectiveness and the principles which
all take as a rule for moral conduct." Shall we attribute this
fact to any regression toward primitive humanity? No;
'* the fine dignity of the legal conscience of modern nations
makes us consider, as immoral and criminal corruptions,
things which in very remote times nobody opposed or con-
demned." Is it, then, the effect of pathological conditions
of the organism? " Certainly; criminality is neither moral
insanity nor impulsive mania; although, in its most salient
features, it may often bear some resemblance to them in that
it makes it possible for honest people to draw back before
actions devoid of sentiments which they possess." But the
choice of free-will is not personal either. " Reason is sur-
prised to see the extraordinary number of influences, currents,
and premises originating from the combined active volitions
that determine the particular value of the deeds of each
individual; and, therefore, this phenomenon cannot be con-
sidered hereafter as a fortuitous event and as an incidental
alteration of the order of things, but as a regular effect of the
no less inseparable attributes of human nature, because
others besides them oppose to it a prudent resistance."

Thus Poletti succeeds in establishing an empirical law of
criminality analogous to Ferri's or Quetelet's laws of saturation,
and more explicit than either in that it teaches that delin-
quency advances always in proportion to the sum total of pro-
ductive, conservative, and juridical activities; because,
after all, crime and work, vice and genius derive their vitality
from the same sources which, more than normal, are indifferent
in their relation to the laws of nature, although when applied
to humanity some are abnormal and others remain normal and
rational.

§35] MODERN THEORIES OF CRIMINALITY 149

" Henceforth, we will not say that man is responsible for
his actions because he possesses a will or because he is fr
but because, having been created by the power of natural
laws which trace for him the way of true humanity, he acquires
in the relations which he establishes and changes through
human intercourse rational and human aptitudes winch
make him responsible for all his actions." *' Only the normal
man is responsible for crime because of the fundamental con-
ditions of his being and of his physiological and psyr
development: conditions which he does not meet in nor
receive from society, but carries in his autonomous constitu-
tion and inner atmosphere."

But, who is the normal man? Is the normal the ideal or
the most common? And in either case, where is the ideal
or the normal?

Section 35. (2) TREATMENT OF DELINQUENCY.

Meanwhile, the discussion of this question does not prevent
the process of the law continuing in full vigor.

In discussing the present condition of the code that is being
formed around the questions of crime and punishment, we
must refer to three interesting publications of a general
nature: " Comparative Penal Legislation," * undertaken by
the " International Union of Criminal Law " under Li.^
supervision; " A Comparative Exposition of German and
Foreign Penology " 2 by the same author; and " A Sketch
of the Present Penal Code in the Lower Countries and
abroad " s by Van Swinderen. Especially the first is to be
recommended.

1 La legislation ptnale comparte (Liemann's del-man and French edi-
tions, Berlin. Two volumes already published).

* Vergleichende Darstellung des Deidxchen und ausldndi&chcn Stra-
Jreckts. (Six volumes published).

3 Eaquisse du Droit ptnal actuel dr. ,s-Ba* et A V&rangrr

ninga; Noordhoff, editor. Six volumes already published).

150 MODERN THEORIES OF CRIMINALITY [§ 36

Section 36. (A) Treatment of Minors.

The most prophetical feature of present penology —
besides others of an atavistic nature as we shall see — is the
establishment of a special jurisdiction for young delinquents,
based exclusively on the principle of tutelage. During the
time intervening between the first and the second edition
of this book this segregation has taken place in the United
States of America, where it had been announced long ago.

The history of the Juvenile Courts begins in Chicago,
Illinois, with a law of July 1, 1899. " From that time on " —
says Julhiet in his " Juvenile Courts in the United States," l
a work followed by Rollet, Kleine, and Gastambide's " Juve-
nile Courts,"2 — "Juvenile Courts have spread over the
immense territory of the United States with unprecedented
rapidity." Of the forty-eight States that compose the Ameri-
can Union, the following have established Juvenile Courts:
New York, New Jersey, Pennsylvania, Ohio, Michigan,
Indiana, Elinois, Missouri, Wisconsin, Minnesota, Kansas,
Nebraska, Colorado, Utah, Georgia, California, Washington,
Oregon, Connecticut, New Hampshire, Tennessee, Maryland,
Rhode Island, Iowa; and perhaps others very recently.

According to Julhiet, these Courts have the following fea-
tures in common:

1. Extreme specialization of the Court: A judge well ac-
quainted with child nature, a separate court room,8 special

1 Let Trihunaux pour enfant* aux Etats Unis; in the Memoires and
Documents of Le Mutte Social, 1896.

1 Lea THbunattx spfciaux pour enfants, Paris, 1906.

1 It IB interesting to quote what Judge Stubbs says about this: " I
have remarked that whonevor T sat behind a table as in an ordinary court
room, my words produced very little effect on the boy seated on the cul-
prit's bench; but, if I sat near him so as to pass my hand over his head
and shoulders I nearly always won his confidence."

§36] MODERN THEORIES OF CRIMINALITY 151

procedure and modes of enforcement, but no Code. These
Courts do not trouble themselves with the question of a
fixed classification of penalties, this being fully replaced by the
necessity of striving to protect the young.1

2. Suppression of imprisonment: The arrested child ia
never admitted into the common room of the Police station;
the convicted child is never sent to a common prison.

3. Freedom under surveillance: In some cases the child is
sent to a reformatory, to a penitentiary colony, or to a chari-
table institution; but, whenever it is possible, the child is
returned to the family in freedom subject to supervision.
This is the method of enforcement of the American system.
We shall meet it later under the name of parole system.

Julhiet forgets, in our opinion, a fourth interesting feature.
Not only delinquent children come before the Juvenile Court,
but also dependent and neglected children who are on the
point of offending on account of bad environment. Thus,
in this special jurisdiction, a unique feature of the Penal
Code of the future, the repressive and the preventive elements

are united under the principle of tutelage.

1 A kind of free and flexible Code results from the following advice*
due to the experience of Judge Mayer:

a. For rebellious and turbulent children, who throw stones at one
another, etc., but who, in reality, are not bad: simple reprehension and
freedom on probation for the leaders of the gang;

b. For children easily tempted, who, desiring, for instance, a book
displayed in a library, resist twice and finally fall: freedom on probation;

c. For children with bad surroundings, who join bad company and have
careless parents: at times it is necessary to send them to the house of
correction;

d. For children of unworthy parents: house of correction or a chari-
table institution;

e. For children lacking moral sense: necessarily the house of correc-
tion;

f. For adventurous and vagrant children, etc.: freedom on probation;

g. For children born incorrigible: their number is diminishing since the
law compels the parents to pay for their support in reformatories.

h. For neglected children: a charitable institution.

152 MODERN THEORIES OF CRIMINALITY [§ 37

Outside of the United States, Juvenile Courts are found
mainly in the United Kingdom (England: Birmingham,
Bury, Bolton, Manchester, Liverpool, Nottingham, Tun-
bridge Wells, Swansea, Stockton, Hull, Coventry, York,
Southport, Beverley, Scorborough; Scotland: Greenock,
Glasgow, Dundee; Ireland: Belfast, Dublin, Cork). Canada
has one in Toronto; and Australia one in Adelaide.

Continental Europe has not accomplished as much. A
curious state of transition is found in the Draft Code of
criminal procedure in Italy, which combines the principle of
conditional sentence with that of suspension of judgment
in the case of less than 18 year old children guilty of crime
and having been sentenced to less than a year's imprisonment
(article 324). Although not establishing a special court, this
means to exclude children from the ordinary one. Every-
where, if not in connection with the court, at least in the
application of the law we find the elaboration of a treatment
for minors distinct and even opposite to that for adults. At
the same time there is a sensible tendency to extend as much
as possible the limit of minority of the penal age in order
to apply the treatment to a larger number of cases.
The Dutch law of April 1, 1905 — in imitation of which
the Congress of Criminal Anthropology of Turin (1900)
passed its resolution — offers also one of the most interesting
examples.

Section 37. (B) Treatment of Adults.

As we shall gradually point out, the progress made in
penitentiary treatment is attained by extending to adults the
treatment adopted for minors. How is it, then, that what is
being done for children and youths is not done for adults?

Among the incoherent answers that are offered in order
to maintain a dualism which the spirit of tradition and mis-

§38] MODERN THEORIES OF CRIMINALITY 153

trust do not wish to forego, another development is already
outlined within the uniform treatment of adults.1

It seems as if the penal reform episode of the begin
of the 19th century were repeated at the beginning of the
20th. While the statutes of those days adopted the so-called
mitigating and aggravating circumstances, to-day, two new
groups are emphasized which we may call, as they have
already been called,2 very mitigating and very aggravating
circumstances, corresponding to the absence of criminal record
and to recidivism. The French law of March 21, 1891, called
the law of mitigation and aggravation of penalties^ can s<
as a formula for the general tendency of our times. It is as
such that we shall present it.

Section 38. (a) Persons Without Criminal Record. —

Pardon. Conditional Sentence.

Pardon. — In the case of a person without criminal record
and of good personal antecedents, who offends through
excusable reasons and is not to be feared, why should the
law be inflexible? Why — asks Judge Dumontet in his
" Mitigation in Repression " — do we not give the judge the
same power of pardoning as is enjoyed by the jury, in spite of
the evidence of the charge, the result of the proof, and the
r confession of the defendant himself?

In the country where the penal code is the most severe,
the law of pardon is on the point of being sanctioned through
the efforts of the celebrated President of the Tribunal of

1 The idea of special courts (composed of women) for adult women
appears in De Ryckere's study, La criminality ancillaire, in the Archives
d'Anthropologie crimineUe, vol. XXI, 1906. The author, who is a judcre
in Brussels, refers to crimes committed by female servants, discussed in
his La servante crimineUe, Paris, 1008.

2 Dumontet, De Vadouciisement dans la repression. . . .II, De* cu«
Constances trts attenuantes, Amiens, 1896.

154 MODERN THEORIES OF CRIMINALITY [§ 38

Chateau-Thierry, the " good judge " Magnaud,1 Congressman
Morlot, etc. In the same Draft of Penal Code revision in
France, article 66, we read: " In cases when, by virtue of
the disposition of criminal law or in consequence of extenuating
circumstances, the judge is authorized to impose light fines,
he can, if the defendant has not been previously sentenced
for crime or offense, waive sentence and warn him not to
count on this immunity in case of relapse. The pardoned
person will be condemned, nevertheless, to pay the costs,
and, if the case requires, to furnish reparation for dam-
ages.2

Probation system and conditional sentence. — The law of par-
don has not yet been fully accepted. But here we have two
systems that resemble it. Their common trait is the suspen-
sion of the sentence extended to certain offenses according to
law. The more the two systems are studied the more dis-
tinct they appear. They are known as:

a. The American system of probation; and

b. The European system of conditional sentence.

For a length of time, treatise writers — and we ourselves
have shared in the same error in the first editions of this work
— have considered the two systems as distinct species of one
genus. To-day, with a better knowledge of the question, they
appear as two distinct genera. Guido Bortolotto 3 is right
when he says: " According to our opinion, the two systems
are different in their basis, form, development, and effects.
The conditional sentence, as the name suggests, is a true
sentence naming a definite judgment both in quality and

1 Leyret, Lea juqementa du President Magnaud, Paris, 1900.

* Texte duprojet de la Commission du Code Ptnal; in the Revue Ptni-
tentiairc, February, 1893.

* El sistema de la prueba en Europa ; in the Rivista di Diritto pertale
9 Scciolojia criminalc, 1908; from the Spanish translation in the Revista
general de Legialacidn y Jurisprudencia, 1909.

§ 38] MODERN THEORIES OF CRIMINALITY 155

quantity; the benefit lies only in suspending the execution of
the sentence. On the other hand, the probation system has
no element of punishment; there is neither sentence nor
judgment. When the period of probation ends favorably,
there remains nothing of the procedure, not even the record
of the offense committed. If anything remains, it is the
healthful reform of the delinquent."

We shall discuss the two systems separately.

Beginning with the probation system, its origins can be
traced to Boston, Massachusetts, in the appointment, in
1869, of the State Agent, who was soon replaced by Probation
Officers. The system has gained ground year after year:
from the capital it spread over the whole State; from Massa-
chusetts to other States of the Union; thence to Australia
and New Zealand; and finally it reached Europe with the
English Probation of Offenders9 Act, in 1907.

In order to give a faithful account of this system we can do
no better than continue to quote Bortolotto.

In the probation system — says he — we must distinguish
two distinct aspects and periods: a preliminary one which
we may call the period of investigation, and a supplementary
one, that of surveillance, also of great importance on account
of its highly philanthropic and efficacious nature.

The period of investigation is of a peculiar nature and
differs sensibly from the course followed by the police. The
investigation is based on new principles. It loses the severe
and inquisitorial character and assumes the essential im-
portance of a preparatory act, which is particularly influential
in the treatment of the guilty. With the change of principlos
there comes a change of means; the tools of judicial invt
tion are supplanted by elements which are more con« i
the importance of their mission and better prepared to under-
stand and apply the new systems which are to guide in the

156 MODERN THEORIES OF CRIMINALITY [§ 38

verification of unlawful deeds and in the investigation and
conviction of the guilty.

The preliminary inquiries are entrusted not to the police
but to persons who do not limit themselves to the discovery
and verification of the mere existence of the deed, but in-
vestigate the causes, no matter how remote, that have
prompted it and the circumstances under which it was com-
mitted. Meanwhile, more than a frigid work of information,
it is an act of zealous charity exercised by persons who con-
sider crime not so much as an evil deed deserving punishment,
but as a symptom of anomalous conditions.

When applied to juvenile delinquency this system gains
unusual importance on account of its effects of prevention
and correction. The investigator does not come before the
judge as a mere witness of the deed and of what he has seen,
as in the case of the police officer; but, weighing with calm
discernment the elements of the offense, he finds himself
in the position of throwing light upon the deficiency of in-
formation, measuring his utterances according to circum-
stances.

We must not forget that the only and true information is
that accepted by the judge, who, guided by the principle that
society must look more to correction then to repression,
decides upon a verdict. But, he does not go so far as to make
a final declaration of guilty or to pronounce sentence; this
he replaces by a measure which pardons the deed, returns
the defendant to society without the stain of a legal punish-
ment, and offers him the opportunity of working out his own
redemption under a treatment of protection and tutelage.

This is the preliminary period of the system, which ade-
quately prepares the way for that of surveillance. The proba-
tion order covering the first period does not possess the
characteristics of a judgment and even less that of a sentence.

§38] MODERN THEORIES OF CRIMINALITY 157

No legal measure is applied, no penalty is inflicted, and, above
all, in the case of minors, " it is not a < <iu ->i ion of puni.sJnn.
but one of education." l

Judgment and sentence are suspended, and everything is
reduced to a personal conviction of the judge who has :
power of collecting the data needed for a sentence whicli li<
can pronounce whenever the probation does not meet with
favorable results.

The probationer must declare that he will submit in
veillance and that he will observe the conditions which the
judge imposes upon him and whicli the circumstances of his
case may require. For instance he is prohibited from frequent
ing undesirable company and places, is asked to abstain from
intoxicating drinks if the offense was that of drunkenness or
one committed under the influence of liquor,2 and to follow
other rules of good conduct and laborious life.

When the Court issues a probation order, the defendant
rarely receives these directions in writing.3

With the probation- order ends the first period of investiga-

1 The Journal of Prison Discipline and Philanthropy, Philadelphia,
January, 1906, p. 19.

3 In the American system, whenever it is a question of drunkenness
or of offenses committed under the influence of liquor, the officer not only
watches the behavior of the probationer, but draws also his wages or
the product of his work and hands it to the interested family, so tha*
may not waste it in a saloon (Cf. Reed: The Reformation of Criminal*,
MacMillan's Magazine, October, 1904, Acts, p. 308).

3 The gist of these directions is more or less as follows: " The court, in
spite of finding you guilty, plaees you under probation in order to
you the opportunity of reforming without suffering punishment.
are kept out of jail under promise that you will behave, live in peace with
all men, appear before the court whenever summoned, thus nvoi
losses to your bondsman, pay the eosts if so required, and give your bonds-
man an account of your conduct at the end of every month of the pro-
bation period. — Special warning: If you wilfully forget your promise
you will be brought baek boforc us who will pronounce your sentr
Your bondsman will answer for you. (Signature)." (Cf. Reed: D
Acts, p. 303).

158 MODERN THEORIES OF CRIMINALITY [§ 38

lion and begins that of surveillance which constitutes the
real period of probation. The method of exercising this
surveillance is outlined only in the adopted laws, some of
which do not give any directions at all, allowing the probation
officers full freedom of action. The officers, guided by the
same principles as in the preliminary investigation, aid and
advise their probationer, investigate his tendencies, look after
his conduct, correct his vicious inclinations, and facilitate
the development of his good tendencies.

Thus, the real period of probation includes two efficacious
tendencies: true surveillance and the education and better-
ment of character. The former is very important although
of a purely formal nature, while the latter contains all the
useful and essential function of the system. For, if environ-
ment and vicious and corrupted associations cause and
determine the offense, regeneration cannot be attained except
through a persistent contact with honesty and righteousness.
This, then, is the mission of the officer, who needs to proceed
with tact, prudence, and courage l that the nature of the
delinquent may require, until the aim that society has in
view is happily attained.

If this, then, is the important and delicate function of the
officers, Hughes is right in saying that " permanent and com-
plete success depends upon the individuals to whom the
working of the system is entrusted." 2

The selection of officers — apart from the question whether
volunteers are to be preferred to salaried officers — must be
made with the greatest care from among persons who
consider surveillance not as a detective but as a humani-
tarian work, and look upon the suspension of sentence not

1 Cf. Barrows' " Children's Courts in the United States," p. xiii.
* Hughes' " The probation system of America," London, Weilhamer
and Co., 1903 (a. Barrows, ibid., p. 49).

{ 38] MODERN THEORIES OF CRIMINALITY

as a judgment but as a kind measure for the reform of the
delinquent.

Therefore, probation officers must have nothing in common
with police 1 and jailers.2 The experience of American legisla-
tions has shown that the more probation officers and funelion-
aries are differentiated from other functionaries of inspection
and surveillance the better are the results of the sy.stem.8

All the legislatures that have adopted the probation system
provide an adequate salary for officers.

The activity of paid functionaries can be supplemented by
voluntary and gratuitous services. The spontaneous coopera-
tion of private citizens, either as individuals or as members of
benevolent societies,4 becomes a valuable auxiliary. It has
even been said that " if the citizens themselves do not take
the initiative in this new movement there is no reason to
expect great things in the proposed direction." 6

Voluntary service is better adapted to the philanthropic
nature of the system. Let no one say that volunteers do not
understand their mission.6 A visit to the Indianapolis Court,
says Mrs. Bartlett, suffices to convince one that such an
assertion is without foundation.7 What we need is that

1 They wear no uniform, are not identified with detectives, and have
no connection with the police, except that the latter are obliged to come
to their aid if need be (Cf. Reed, ibid., Acts p. 303; also Stoppato,
" I tribunals speziali per i minoreniii delinquenti," in Rivista Penalc,
LXV, 415).

2 Cf. Hughes, ibid.

3 Bartlett, Systems de la miss fi V fpreuve dans les Etats Unix d'Amenqu*
(Actes du VII Congr. p6nit. int. Budapest, 1908; cf. pp. 280, 281).

4 Stoppato, ibid., in Rivista penale, LXV,

5 Reed, Actes du Congres, quoted on p. 311. — Cf. Trompeo, in Nuova
Antologia, July 16, 1907, p. 321. — Cf. also Barrows' " Children's Courts
in the United States," pp. 156,

e " ... A voluntary officer is gomotimi"* looked upon as a m<
and is not received with the respect the office should command " (Cf.
Barrows, ibid., p. 112).

7 Cf. ibid., p. 293.

160 MODERN THEORIES OF CRIMINALITY [§ 38

officers be selected with care and that they give proofs of
zeal; once granted to them the same power enjoyed by paid
functionaries, we have reason to hope that they will fulfill
their office successfully.

The duties of the probation officer under the direction and
inspection of the court to which he is assigned are as follows:

a. To visit and gather information concerning the cases
assigned to him at intervals fixed by the probation order or
left to his own judgment;

b. To verify whether the probationer fulfills the conditions
imposed upon him;

c. To report to the court on the conduct of the probationer;

d. To advise, help, and befriend him; and if necessary, to
find him a suitable occupation.1

Many American Statutes make no similar provisions. The
officers, free in their movements, display more diligence and
lend their assistance hi each case according to their own judg-
ment.

This, then, is the treatment applied during the period of
probation; but the time is not so fixed that the Court cannot
alter it, and, if satisfied with the experiment, release the
probationer from surveillance.2

The duration of probation is left to the discretion of the
judge, who can lengthen or shorten it at pleasure. Un-
doubtedty, some statutes do not permit that the duration
of probation exceed that of the penalty; 8 others prescribe

1 Cf. Probation of Offenders' Act, 1907, art. 4.

2 Cf . Probation of Offenders' Act, n. 5. New York State possesses a
remarkable system. The possibility of imposing the penalty does not
end with the period of probation; for the judge orders the sentence sus-
pended for the length of time covered by the suspended penalty. This ia
analogous to the procedure on parole. Cf. Report of the Probation Com-
mtwum of the State of New York, 1906, Albany, Brandon Printing Co.,
1006, p. 5.

• California, 1903, ch. 34; Michigan, 1903, ch. 91.

§38] MODERN THEORIES OF CRIMINALITY 161

the time in which the judge expects tin- reform, a period vary-
ing from one1 to three years; 2 and otln-rs, which are in gen-
eral the most recent, have no special ordinance on this point.1

On verification of the fact that the offender has not com-
plied with the conditions imposed, the Court can issue a
warrant for his apprehension or for his appearance in Court.

The prisoner, when not brought before the Court tli
the probation order, can appear before a Judge sitting in
Chambers who can order his detention or release on bail
until able to appear before the Judge interested in the case.

This is the American system of probation. Next we shall
glance at the European system of conditional sentence.

Its oldest precedent is found, evidently, according to
Loeffler,4 in the canon law; but its actual and immediate
precedent to which is due its expansion in Europe is to be
found in the Belgian law of May 31, 1888, recommended
to legislators by the International Union of Criminal Law at
the meeting of 1889 as the best means of avoiding the great
inconveniences of short sentences.

The progress of its expansion can be better seen in the
following table:

1. Belgium: law of May 31, 1888; and Code of military
criminal procedure of 1900 (for no martial penalties).

2. France: Berenger's law of March 26, 1891, on the mitiga-
tion and aggravation of penalties.

3. Switzerland:

a. Canton of Geneva: law of October 29, 1892.

1 Connecticut, 1903, ch. 126; New York, 1903, ch. 613, for minors as
well as for adults.

2 New Jersey, 1899, ch. 102, for adults.

8 Minnesota, 1893, ch. 150; 1903, ch. 220; Missouri, 1901, ch. 135;
1902, ch. 212.

4 La condemnation conditionelle au Moyen Age; in the Bulletin d§
V Union Internationale de Droit p£nal, 1893.

162 MODERN THEORIES OF CRIMINALITY [§ 38

b. Canton of Neuchatel: law of March 24, 1904.

c. Canton of Vaud: law of May 13, 1897.

d. Canton of Valais: law of May 23, 1899.

e. Canton of Tessino : decree of November 19, 1900.

f. Canton of Friburg: law of May 9, 1903.1
4. Luxemburg: law of May 10, 1892.

6. Portugal: law of June 6, 1893.

6. Norway: law of May 2, 1894; and Penal Code of 1903.

7. Germany:

a. Saxony: order of the Department of Justice, March 25,
1895.

b. Prussia: royal edict to the Department of Justice,
October 23, 1895.

c. Wtirtemberg: idem, February 24, 1896.

d. Bavaria: idem to the Department of Justice, March,
1896; and royal sanction of January 15, 1896.

e. Hesse: decrees of the Department of Home Affairs and
of Justice, June 22, 1893; June 29, 1895; and June 25,
1896.

f. Hamburg: circular of the Chairman of the Department
of Justice, April 30, 189g.

g. Brunswick: ordinance of March 5 to 22, 1903.3

8. Bulgaria: law of January 5, 1904.

9. Italy: decree of June 26, 1904 (Ronchetti law), recast in
the Draft Code of criminal procedure, 1905 (articles 462 to
464).

10. Spain: law of March 17, 1908.
Found only in the state of draft are:

1. Greece: Typaldo Bassia's draft (1906).

1 The principle of conditional sentence is set forth in Stoos' Draft
of the Federal Penal Code in Switzerland, article 50.

3 The German preliminary Draft of Penal Code also accepts tha
principle of conditional sentence.

§38] MODERN THEORIES OF CRIMINALITY 163

2. Argentine Republic: draft of Penal Code (1906).

3. Japan: revision of the present Penal Code.

Besides Europe, the principle of conditional sentence has
been adopted by:

1. Massachusetts: Penal Code of October 1, 1900.

2. Maurice Island: law of 1900.

8. Egypt: Penal Code of February 14, 1004.

The Belgian law of May 31, 1888, authorizes the Courts to
pronounce at their own discretion the conditional sentence
under the following circumstances: when the penalty, be it
principal or accessory or both, does not exceed a term of
six months* imprisonment; and when the prisoner has not
served any sentence for crime or offense. The term of su>-
pension is for five years, and the sentence is considered as
nul unless the offender commits a new crime or offense during
this period; in which case the suspended penalty or penalties
increase by the addition of the new sentence.

Other laws have imitated this system in the main, with the
exception of some details which will be discussed later. Only
the Norwegian system deserves special attention.

In Norway, the courts not only have the faculty of con-
ditionally suspending a prison or a fine penalty, but also the
compensation to the victim; that means that a part of our
civil liability tends to become criminal in the modern law.
Moreover, conditional sentence is granted not only in cases
adjudged by the Courts, but also whenever the Prosecuting
Attorney and the police authorities issue a forelaeg, th;i
criminal warrant which can be used with t • ss consent

of the delinquent, because only fi' ^ed. The

necessary requirements are: a. That the person or
penalty be commensurate with the offense; and b. That
peculiar circumstances concur in the defendant, like age (less
than 18 years old), good conduct (not having been previ

164 MODERN THEORIES OF CRIMINALITY [§ 38

punished for certain offenses), little importance of the offense,
conditions under which the offense was committed (grief, provo-
cation, incidental drunkenness), full and sincere confession,
satisfaction given to the victim or readiness to do so, etc.
But none of these circumstances is so important that no con-
ditional sentence can be pronounced without them. The
term of suspension is of three years, during which time the
execution of the sentence is carried out in case of recidivism
or failure to compensate; although even recidivism does
not altogether determine the fulfilment of the sentence,
a fact which constitutes an altogether new feature of the
system.

Conditional sentence is still the object of lively discussion
everywhere. Beginning with the communications presented
by Prins and Lammasch to the Brussels meeting of the Inter-
national Union of Criminal Law, the theme has been taken up
by penitentiary congresses, academies, scientific societies,
and technical reviews, forming thus a bulky literature.

The Union has made of it its " pet child " as Liszt con-
fesses; and from the time it recommended the Belgian law
to the legislators of other countries, it has continually fol-
lowed its progress, collecting in its " Bulletins " all the ad-
vances it has made. Conditional sentence, even in the present
transitory form, violates so many classical principles and dog-
mas that it is not to be wondered at if it has gained also
resolute opponents.

Among its partisans are: Liszt, Prins, Van Hamel, Lam-
masch, Leveille, Dreyfus, Puibaraud, Lejeune, Beltrani
Scalia, Puglia, Setti, Notaristefani, Tallack, Howard Vincent,
Wines, Rosenfeld, Aschrott, Seuffert, Bachem, Simonson,
Fuld, Heinemann, Mayer, Payer, Stoos, Sitter, Harold,
Hagerup, Uppstrom, Wulfert, Taganzeff, Sloutchowsky, Piont-
kowsky, etc.

§38] MODERN THi:ORJLS OK CRIMINALITY

Among its adversaries are: Kirchcrihcim, Wachs, Appelius,
Rolin, Binding, Vierhaus, Meyer, Finger, Ofncr, Pfcnniri
Domela Nievenhuis, Levy, Thalberg, IVlit, Manduca,

An intermediary group which with

certain restrictions is composed of men like (iarofalo, I'Vrri.
Foinitzky, Gautier, Goos, Schmolder, Ditzen, Bar, Schu:
Brzobohaty, Pessina, Chiarone, etc.1

In ancient penal , systems prison penalties were seldom
inflicted. They were mainly limited to what we call to-day
preventive detention. Prisoners awaited in I heir cells the judg-
ment and the repression which were of quite a different form.
They consisted either of bloody and collective eliminations
by which the legislators, " like the ancient heroes of Greece
tried to rid their States of monsters " (Guizot), or of mutila-
tions and other corjx>ral punishments, or of hard labor in
the King's mines or galleys, or of lighter public servi-
various forms of work, etc. But from the time of Be-
reform and the Revolution, penology began to be cen1
on these penalties which to-day have become typical and
unique through a series of causes summed up thus by Garofalo :
" The idea that the deprivation of freedom is an afflic!
equally felt by all; the idea that civilization cannot tolerate
corporal punishments; and the necessity of equality and
symmetry in all tilings, have ended by giving the preference
to this class of punishment* which are susceptible of alum-it
infinite divisions and subdivisions." 2

But, short sentences have proven everywl •
to repress small offenses; and what is worse, they I
and decidedly fomented recidivism. Not being able t->

1This classification is taken from the first edition of this work, and
was made at a time when the polemic was at its height. Since now it has
been decided in its favor, it would be inv to enumerate a!!

adherents.

* Bulletin de VUnion Internationale de Dro'.t P.'mi/, May, 1880.

166 MODERN THEORIES OF CRIMINALITY [§ 38

correct — for, what correction can be obtained in their short
terms? — or to intimidate, for modern prisons offer material
conditions of life superior to those enjoyed by the lower
classes of society from which delinquency is mainly recruited,
they offer no hope except to the few who from the point of
view of absolute justice believe that the debt is paid and
society satisfied from the moment the sentence is served.
On the contrary, the punishment itself produces recidivism
in the man who enters a prison for the first time. His honor-
able and industrious existence having been marred and
destroyed by a small offense or misdemeanor (the number of
which are being constantly increased by the exaggerated
activity of the police), turned out from the workshop, and
mistrusted by everybody, he will be led back to prison through
the paths of idleness and drunkenness, like the unmarried
mother who returns to prostitution.

What shall we substitute, then, for the short sentence?

First of all, money penalty is out of the question when we
consider the economical condition of the delinquent class.
Other substitutes arranged in logical order and suggested by
the association of ideas are as follows: At first one thought
of detention, substituting the home for the prison (domiciliary
arrest). Then, recourse was had to other forms that are now
in disuse, although some of them are to be found in modern
Codes, like judicial warnings and security, or certain kinds of
hard labor without imprisonment. They even recurred to a
reconciliation with the victim and to the reparation of
damages as penalty; and, going to the other extreme, it
was asked whether it was not time to make the modern
prison more severe by going back to the hard prison
of the old regime.1 At this time the conditional sentence

1 Cf. the papers read before the Amberes meetings of the Union by
Ofner and Felisch; Bulletin, V, 1895.

§ 38] MODERN THEORIES OF CRIMINALITY 167

and pardon as another manifestation of the same idea
reached Europe.

Immediately, a group of the most progressive reformers of
criminal law and of penitentiary science saw in it " the most
simple and efficacious means of checking the excessive de-
velopment of the short sentence " (Liszt). Scalia finds it
" such an ingenious disposition and so adequate for many
purposes, that it is impossible to conceive how any Code can
do without it." 1

Besides, it is not an innovation without precedents. It
represents both security and reprehension. It is that "cor-
rection by the judge's mouth " spoken of by Domat — and
which the great magistrates of olden times, like D'Aguesseau,
Servan, and Lamoignon claimed to employ — as well as a
material reprehensiorij because of the constant psychic coercion
which it produces in the delinquent. If this coercion produces
results, can there be anything better than to redeem the
delinquent without handing him and his family over to
poverty and shame? If it produces no results, he will not
remain unpunished, for penalties accumulate. Young de-
linquents, occasional criminals, and authors of small offenses
find their best treatment in the conditional sentence, which
affords exercise in self-control, and is far superior to the
inertia and contagion of the prison. It even strengthens prison
penalties which by their constant application have lost all
their value.

The foes of the conditional sentence, although recognizing
the inconveniences of short sentences, propose to reform and
not to abolish them, claiming that the former is irreconcilable
with the principle of retributive justice. "The conditional
sentence," says Appelius, " cannot be accepted unless we place

1 Beltrani Scalia; quoted by Sotti in La condanna conditional*, Ri-
vista di discipline carcerarie, XX, 350.

168 MODERN THEORIES OF CRIMINALITY [§ 38

criminal law on a different basis." Others have referred to the
sanctity of the sentence, its greater or less incompatibility
with the prerogative of pardon and with certain principles of
procedure, etc.

The conditional sentence, according to Appelius, answers
to a new conception of punishment. The American probation
officer is really a tutor dativus (the guardian of the Roman Law).
But, what shall we say of the European system in which there
is neither guardian nor physician, and the delinquent is left
to himself? At first, both the pardon and the suspension of
penalty seem incompatible with the demands of a solicitous
and beneficent treatment; but, on further study, one notices
that both form part of that same system understood in all its
subtlety. Who does not know that at times the best remedy
is a kind of laissez faire allowed to the healing virtue of the
organism, a discrete abstention from interference that might
prove a hindrance? Inactivity and waiting for developments
is a rational process which ought to be applied in this case as
in other things. The conditional sentence and the pardon
mean, therefore, the recognition of certain tempora tacendi
as Vives would say. They are not measures of grace and
mercy, but of a higher and enlightened justice. Undoubtedly,
their application requires greater initiative, superior con-
science, and more profound knowledge on the part of the
judge; but, as Prins remarks, the function of the latter be-
comes, thus, nobler and higher.

Let us glance, in conclusion, at the strange contrast offered
by the existence of these systems fused with the group of
traditional systems of punishment. The former are, according
to Ferri, an eclectic graft on the old stock of criminal law and
procedure, whose result is best expressed by the Italian
proverb : " the first fault is pardoned and the second whipped."
In fact, when we consider that the " sword of Damocles,"

§39] MODERN THEORIES OF CRIMINAL! 169

the " persistent hanging threat " is the metaphor that best
explains the power of the two new creations, then we will
understand the reason why Leveill6 coi nd calls them

the prologue of penology. But the future destines them to
form a part of penology itself, when the conception of the latter
is so changed as to admit that the first fault is pardoned and
the second whipped, as long as the fallen will is redeemed.

If it should be asked which of the two systems is preferable,
the probation or the conditional sentence system, we would
say that although the latter may suffice in some cases when
the automatic correction of the delinquent can be expected,
it ought to be accompanied by the former especially in the
case of minors; for it is the only ethical manifestation of
tutelary punishment in modern law.

Section 39. (6) Recidivism — Deportation — Indeterminate
Sentence — Reformatories — Capital Punishment.

In contrast with mitigation for delinquents without criminal
record we have aggravation for recidivists.

Deportation. — This first solution is of old origin. Primitive
communities practised the easy and unhindered method of
elimination both in the relative and in the absolute form men-
tioned by Garofalo. The expulsion from the soil and the
withdrawal of the protection of the law was one of the first
ideas recorded by writers. The malefactor was taken to the
seashore with bound hands, placed in an un inns ted and,
perhaps, leaking boat, and abandoned to the caprice of the
waves.1 Subjectively, as Makarewicz remarks, this man
exists no longer for the community; he is civilly dead as he
would have to be called, and in reality he is not far from

1 Makarewicz (Evolution de la peine) attrihuto this custom to the old
Germans and to the inhabitant* o< 1 of Tobi. It must have

been practised with slight variations in old maritime towns.

170 MODERN THEORIES OF CRIMINALITY [§ 39

natural death either. Yet, the community is not satisfied;
it returns inland, nails down the doors of the malefactor's
house, razes it to the ground, fills up his wells, devastates his
fields and scatters salt over them so as to render them un-
productive. These are the energetic features of primitive
elimination. The same idea that caused more or less violent
exile and banishment produced, also, the deportation of de-
linquents to places far from the community that expelled
them. But, as the known parts of the earth were covered
with men, these punishments fell into disuse until the dis-
covery of new worlds and territories brought them back in
the struggle against crime.

Russia, England, and France are the three nations that in
modern times have practised deportation on a large scale.
England has ended her cycle of penitentiary colonization;
legendary Australia offers an ideal example which other
countries would fain follow. In Germany, the cry of away
with jails has already been raised; * and in Italy, Eritrea has
been pointed out as a penal colony.

The example of Australia seems to have had sad results
in France, where by the law of May 27, 1885, there was
organized the system of deportation, imitated later by Portu-
gal (law of April 21, 1891), and probably to be followed by
Argentina (Draft Code of 1906). The French penologists
(headed by Leveille, Vidal, Gar£on, etc.), with some excep-
tions, as in the case of Larnaude, look with favor upon deporta-
tion and penal colonization, and have advocated their cause,
basing their faith on a precedent. Under the influence of
an example the principle of deportation has spread to the

1 Fort mil den ZOckthUutern, Breslau, 1894, is the title of a pamphlet
by Bruch, who is the autiior of other works of the same nature (Neu
Deutachland und seine Pioniere, Breslau, 1896; and the paper read before
the CongreM of the Union at Lisbon). Together with Freund, he is a
advocate of deportation and penal colonization in Germany.

§39] MODERN THEORIES OF CRIMINALITY 171

extent that at the Penitentiary Congress of Paris it was
declared fitting " for serving out long sentences due to serious
crimes, and for the repression of habitual criminals and
obstinate recidivists." Under the same influence, the Inter-
national Union declared in Lisbon that deportation could
play a part in the modern penal system. Almost at the same
time, a communication was sent by Foil let, Governor of New
Caledonia, to the General Prisons Association l showing the
failure of the system from a penal as well as colonizing stand-
point. These authorized revelations created a great sensation.
The government itself is planning to abandon the attempt
according to the report of another writer who visited Calr-
not long ago.2 If we add to this the change of policy of II
which has limited deportation to the island of Sakhalin,
we will easily understand why the general state of mind is one
of mistrustful prevention before a disaster.

Nor are there wanting men who, like Fani,3 believe that
deportation is the secret of penitentiary science and the
neutral field on which classicists and positivists clasp hands,
forgetting, as Viazzi affirms, that if in its favor are found men
like Ellero, Canonico, and Garofalo, the opposite side is
championed by Brusa, Pessina, Beltrani Scalia, Nocito,
Lombroso, Laschi, Drill, and others.

Without examining the arguments of either side, it can be
affirmed that the penalties of elimination as such, like deporta-
tion with abandonment, which Garofalo advocates theoreti-
cally — " if there could be imagined the existence in Oceania
of an island by which no ship could sail," or " if the Robin-
sons did not end by meeting always human bei — would

1 La colonisation p6nale en Nouvellc CaWdnnie: in the Revur Ptniten-
tiairc, XXII, pp. 646-656.

2D. Drill, in his communication to the Congress of the Union at
Lisbon.

3 La deportazione, Rome, 1896.

172 MODERN THEORIES OF CRIMINALITY [§39

still remain intolerable inferior systems. From these they
have passed to colonizations that might clean large centers
of their vicious elements, and to labors of the soil by which,
according to an oft-repeated phrase, the convict must
prepare the abode for the honest and free man. But, on the
other hand, the first answer the English colonies gave to the
attempts of the mother country to send them her criminals

would still be right: What would you do — they answered

if we should send you our rattle-snakes? That must be the
end of the one-sided and selfish point of view. As for the
labors of the soil, the idea is opposed by a conviction which is
gaining the conscience of true, honest, and free men, that it
is they who are duty-bound to prepare the soil and the new
life for delinquents. The terms have been reversed and the
consciousness of this duty forbids making of them servants
by law of a favored social class, as they were once of royal
mines and galleys.

We are scarcely rid of these systems of elimination. But,
should we condemn and eliminate them? The idea of ex-
clusion from one environment or of deportation to another
seems, in these days when its influence is so emphasized, too
important to abandon. The change of climate can become a
remedy as in medicine. At times the mere transfer can suffice.
Is not the simple fact of making distance intervene, a piece of
foresight used at every instant both in the penal sphere as
well as in private life, as we can see by the results empiricism
shows us? But, hi other cases, perhaps the more numerous
and surely the more important, of what avail would deporta-
tion be if the delinquent were not removed to a well selected
and well prepared environment as is done in the choice of
climate and watering places for the sick? If, as Plato says,1
there were for the moral welfare countries placed under the
BookV.

§ 39] MODERN THEORIES OF CRIMINALITY 173

influence of a beneficent spirit with springs of psychological
virtues . . . that would offer the remedy.

This has given birth to the so-called agricultural penal
colonies, which, beginning with the famous one of Mettray
(Indreet Loire), are finding their way in all civilized countries.
They are intended for rest, nutrition, and moral recuperation.
They seem to realize tli<> punitive equivalent of the treatment
given the insane in the Belgian town of Gheel, so much longed
for by some thinkers (Kropotkin), since, as in the colony of
Val d'Yevre (Cher), one enjoys freedom and the cultivation
of the soil — " man acting upon the soil and vice versa " —
as well as the home treatment.

From all that has been said we can draw one conclusion.
While penalties inflicted through segregation have had no
other object than the segregation itself, their results have
been similar to those produced by prison penalties whose
only object was the prison itself. Things being so, one might
as well fill the prisons with delinquents as dump them upon
the colonies. The discussion between the advocates of the
one and of the other is of no serious weight. Both forms are
equally undesirable. The same cannot be said for the form
that has produced an Elmira Reformatory or a Colony of
Mettray. The important point is to discriminate and to
individualize as much as possible by applying to each class
of delinquents the most suitable form for them and by dis-
tinguishing under what circumstances and treatment it is
to be applied. Only then, as a physician prescribing for his
patient what is best for him, will the judge believe that he is
doing a true work of distributive justice.

Indeterminate sentence. — As a contrast,the conditional or sus-
pended sentence suggests the idea of a penalty extending over
an indefinite period of time. Thus, it must have been this asso-
ciation of ideas that gave birth to the indeterminate sentence.

174 MODERN THEORIES OF CRIMINALITY [§ 39

Ferri states that a system of accumulated or progressive
sentences, by means of which the penalty increased almost
in geometrical proportion at each relapse, had been proposed
by Viel and Walton Pearson back in 1871, having already
been sanctioned in the penal code of India, while a Japanese
law condemned a man who relapsed for the fourth time to
life imprisonment.1

Less developed than the conditional sentence, the indeter-
minate sentence, in its form of indefinite detention, is found
in many American States (Massachusetts, New York, Ohio,
Minnesota, etc.), and in the Norwegian Penal Code of 1902,
which, according to section 65, grants that dangerous de-
linquents can be detained even after having served the ordi-
nary sentence, as a measure of safety, for a period not exceeding
three times the length of the sentence or fifteen years. Plans
for analogous measures for the treatment of recidivists are
found in England (Draft of indeterminate segregation for
habitual criminals, approved by the House of Commons,
June 22, 1904), in Switzerland (Draft of the Federal Code,
1893), and in Russia (Draft of the Penal Code of 1903).

Nevertheless, we can easily understand how the principle
of indeterminate sentence, or rather, the principle of sentence
without previous determination is applicable to the general
problem of fixed penalty. Thus stated, it is related to the
corrective doctrine. It is difficult to understand how a
writer like Garofalo may criticize it; because while, on one
hand, he declares that the object of punishment is the correc-
tion of the delinquent, on the other, he establishes a fixed term
for each crime, that is, a certain number of days, months, or
years in a State institution.2 Garofalo's Spanish translator,
Dorado Montero, has felt it his duty to rectify this statement,

» Rociologia criminate (4th edition, Turin, 1900), p. 892.
* Criminalogia, p. 162.

§39] MODERN THEORIES OF CRIMINALITY 175

citing against it the name of a Spanish correctionalist,1 who
in several of his works has fought fixed penalty, even before
the time when Kraepelin 2 and Willert 3 asked for the aboil
affixed penalty. The last mentioned, a judge by profes>i
has said that " to establish a fixed term for each crime would
be the same as if a physician pr<-.M-riU><] a treatment for a
patient determining on which day he was to leave the hospital
whether cured or not."

Gautier, in his " The pro and the con of Indeterminate
Sentences," 4 has admirably summed up the arguments in
favor and against, stating the opinions of Kraepelin, Willert,
Liszt, etc., for the pro; and those of Wach, Mittelstadt,
Sternau, Zucher, Lammasch, etc., for the con.

The arguments in favor have already been stated. If the
object of punishment lies in the future and appears uncertain,
how can the sentence be fixed at a certain number of days?
On the side of the opposition, there are some who advocate
the opposite penal significance, that is, that of retributive
justice; others who protest in the name of the victory of the
Revolution that abolished judicial discretion; and still
others, who, while accepting for the sake of argument the
original principle of indeterminate sentence, ask for the proof
of the correction that ends the sentence.

1 He refers to F. Giner. This is what he says in his Principles de
Derecho Penal (Madrid, 1873, p. 170): " Among the many historical ne-
gations of the right understanding of punishment must be mentioned
. . the serious error of determining o priori and in an absolute \\-iy the
duration of the penalty announced in the M 'if it could be any-
thing but the one thing necessarj/ to accomplish the end in ricw, and which,
at the time the term is served, is still extremely uncertain."

2 Die Abschaffung des Straf masses,

3 Das Postulat des Abschaffungs des Straf masses mil der dagegen. «r-
hdbenen Einwendung.

4 Pour et contre les peines indetermin> Sckweizeri&ckc Zeitr
schrift fur StrafrecJits, IV. — Cf . also Levy, Des sentence* indeterminee*,
Paris, 1897.

176 MODERN THEORIES OF CRIMINALITY [§ 39

Among the first, Tarde, who is the most noted and who con-
siders punishment as the wages of crime, says that punishment
like wages ought not to be indeterminate. In fact, from this
point of view, the indeterminate sentence has no reason to
exist. In the " exchange of values," of which Carrara speaks,
punishment must have the same value as the crime; and if
it were possible to verify this mathematical operation, the
principle would be just. But, apart from the confirmed
decrepitude of the theory of retribution, to desire to measure
the crime by the punishment is the same as to ask, according
to Moddermann's old remark, how many kilograms of iron
are necessary to make a suit of clothes? In reality, it is more
absurd than that; for, after all, the condition of the market
would solve the strange problem, while in our case it is a
question of measuring something for which there is no measure,
something which is beyond the traffic of men. As Max
Nordau would say, this is " the greatest conventional lie of
modern Byzantium."

The second group numbers men like Berenger, Leveill6
and Foinitzky, who claim that we ought not to endanger by
a debatable reform one of the most precious victories of the
Revolution. Sternau, for instance, says that " with the
indeterminate sentence the citizens would lose the palladium
of their safety, the warrant against a judicial decision which
fixes the time and the length that a culprit must be deprived
of his freedom."

It is well known that, as Boitard affirms,1 the criminal law
posterior to the Revolution was almost entirely different
from that anterior to 1789, and that one of its novelties con-
sists in having suppressed the vast and fearful arbitrariness
of the old penology. " Punishments are despotic in this
kingdom " said the French practitioners; and they could

1 f'f. Dorado Montero's Problemas, I, 19.

§ 39] MODERN THEORIES OF CRIMINALITY 177

have said the same thing of other countries. Therefore, in
consequence of the abuses suggested by the ill-sounding word
arbitrariness in law, the Revolution accomplished two things:
it protected the citizen against the abuses of the judge; and
checked the latter by a very explicit law, which defined every-
thing, measured everything, and was to be applied by the
judge mechanically.

Now, as these guaranties have been asserting themselves
so as to become an integral part of that law which does not
need to be expressed in the statutes, the double work of the
Revolution is on the point of dissolution. People think that
so much security, " as long as it is wrongly used to protect
the individual, constitutes the very weakness of criminal
law " (Garofalo). Judicial discretion is regaining what it
had lost, and rids itself of the unfortunate note as the magis-
trate gains in science and conscience.

The latest approved Codes and the Drafts which are being
drawn everywhere bear witness to what has been said. It
suffices to give a glance at the Dutch Code, which is pointed
out as a model, to see that judicial discretion is such that
the magistrate can pass from the maximum penalty of life
imprisonment to the minimum one of a single day.

Perhaps of more importance is the other feature of the
movement suggested by Garofalo's statement quoted above.
When one considers that, as Liszt remarks, " no matter how
paradoxical it may seem, criminal law is the Magna Charta
of the criminal," for, as a result of those guaranties, it " pro-
tects neither legal order nor society, but only the individual
who is rebellious to its dictates*'; then the indeterminate
sentence, almost to the point of becoming perpetual, is re-
served for the habitual criminal, the incorrigible recidivist.

This is one side on which the indeterminate sentence tries
to find its way into the penal system of to-day. The idea is

178 MODERN THEORIES OF CRIMINALITY [§ 39

vaguely outlined in the Union's by-laws and made clear by
Van Hamel, one of the founders. This writer (in a paper
read before the Paris Congress of the Union) would like to
recommend the absolutely indeterminate sentence for incorrigible
criminals, that is, for those whose confirmed criminal instincts
threaten society with permanent danger; and for its applica-
tion, he would recommend the process of applying the measure
after the ordinary sentence, and in the cases pointed out by
the law, by means of deliberations and periodical orders
with trials of provisional freedom and the possibility of
ultimate liberty, to be carried out by the judicial authorities
with a procedure resembling the ordinary one. Gautier
also, after having analyzed one by one the advantages and
disadvantages of the indeterminate sentence, " fascinated
by its theoretical side and repelled by the obstacles offered
by its application," ends by recommending it only for in-
corrigible criminals. Griffiths, General Inspector of the
English Prisons, classifies the criminals of all countries in
two large groups: those who should never enter a prison and
those who should never leave it (a paper read before the
Congress of Criminal Anthropology at Geneva on " The
Practical Treatment of Recidivists" ). After all, this is but
another expression of the war against recidivism. Are not
the police asking everywhere for an anthropometric and
medical analysis that would afford a sure and indelible mark
of the personality through which the recidivist can be de-
lected? Then follow the new methods against this plague.
The progressive aggravation of penalties for the recidivist
is an accomplished fact; a step further and we reach life
sentence. But men stop at this point. Van Hamel himself
only dares to suggest the possibility of a detention " until a
very advanced age."

On the other hand, Prins reserves the indeterminate sen-

§39] MODERN THEORIES OI CRIMINALITY 170

tence for minors worthy of protection. Gautier would add
delinquents who are in such pathological conditions that
the cure is revealed by positive marks, as in the case of drunk-
ards. Griffiths advocates a " system suited to Ihe Saxon
taste " as Riviere remarks; a .system, according to which,
the duration of the penalty, instead of being fixed a priori by
the judge, should be fixed a posteriori by a special coinn;
according to individual circumstances. Liszt asks for a
general treatment in which the penalty should fluctuate
between a maximum and a minimum : its completion depend-
ing on the decision of a mixed commission (judicial adr
trative). Others propose new systems dealing only with
the details.

It is certain, however, that in the midst of M» muci
cussion the principle of indeterminate sentence appears here
and there, now within the maximum (recidivists: incor-
rigibles), now within the minimum limit of the fixed law
handed down by the Revolution. Leveill£ took no notice,
or did not wish to take notice, of this double invasion, which
will finally unite, when at the session of the Union in Paris
he said : " The indeterminate sentence is as simple as a false
idea."

According to Foinitzky, the future belongs to it; and this
is not a prophecy, but the result of prolonged observations.

The argument of practical application is also set forth
against the indeterminate sentence. How can it lx» proved
that we have reached the end of its period? What will
us that the penal function has been fulfilled?

These questions have already boon answer^] by asking:
how does the physician know that his pa! .lined

health? How does the teacher know that his tusk has been
accomplished? They will never know if we look upon life
as a period of constant education where everything must he

180 MODERN THEORIES OF CRIMINALITY [§ 39

learned, from articulate speech to death. But we may look
upon the work of the indeterminate sentence as well as upon
that of the physician and of the teacher as the minimum
needed for the object in view. The correction of the delinquent
is not a process of sanctification. It has more modest claims.
It aims at endowing him with moral strength enough to
prevent him from relapse. " A delinquent can be considered
as reformed when such a change has taken place in him that
on returning to a life of freedom he will not offend again";
his reform is " the reasonable probability that he will not
break the law again " (Smith).

These probabilities, as in any other phase of life* are mani-
fested by exterior signs, daily manifestations, and repeated
tests and experiments. To this modern law adds another
institution which we shall now discuss.

Reformatories. — In the evolution of prison penalties, we
distinguish two main features. In the first place, since the
prison is a place of punishment, everything tends to deprive
the prisoner of certain comforts of life considered secondary
or superfluous, and to diminish the most important ones, like
air, light, food, and rest; penitentiary prohibition includes
all. In the second place, deprivation of freedom is under-
stood to be the simple means of isolating the delinquent
from bad influences and of making him the recipient of
good ones which the penitentiary treatment places at his
disposal.

Beginning with John Howard, the history of penitentiarj
treatment in the prisons is well known. The system of life
in common among prisoners is immediately followed by sys-
tems of classification (sex, age, crime, character); and, as a
contrast, by that of absolute isolation. Later it is changed to
relative isolation. The Auburn system separates the convict*
only at night, allotting to each a separate cell; while, in the

§39] MODERN THEORIES OF CRIMINALITY 181

daytime, according to Holder,1 real isolation is substituted by
a fictitious, artificial, and superficial MM :ing in com-

pulsory silence. Finally, there appears the cellular system
as the result of selection from these fi ling

with prison penalties. The system of indimdinilization suc-
ceeds that of classification. It isolates each convict from the
rest, forming thus a class by himself; it borrows the cell from
the Pennsylvania and the Auburn type tan the de-

Hnquent in it, as in an antiseptic treatment ; and places him
under the healthful influence of an environment composed
of supervisors, physician, superintendent, teacher, etc.

For some time, the cellular system corrected by 'progressive
Irish and English methods, has been accepted as the last word
of penitentiary science. It is only at present that opposition,
which is sure to accompany every theory and system, assumes
form and asserts itself through the hostile position taken by
the positivistic school. Enrico Ferri has more than any other
voiced this opposition by qualifying the cellular system as
one of the " greatest aberrations of the 19th century." It
was at his suggestion that Italy, by the law of June 26, 1904,
abandoned the already adopted cellular system and sent her
convicts to clear the fields and drain the regions infected by
malaria. As Riviere remarks,2 it is strange that a school so
imbued with the influence of social environment should be
hostile to individual isolation and advocate the methods of
classification. When Ferri says that although environment
acts powerfully upon the individual, he is a man and there!"
a social being whom we cannot isolate without leading him t<>
insanity or suicide, he does not really criticize the cellular

1 Reforma del sistema espanol mediante el regimen celular ; in the Doc-
trinas fundamentales reinantes sobre el delito y la pena ; translated by F.
Giner, Madrid, 1876.

3Le Congres d' Anthropologie crimineUe de Geneve; in
Revue de Droit public, 1897, p. 378.

182 MODERN THEORIES OF CRIMINALITY [§ 39

system, but the extreme types fashioned after that of
Auburn.1

In general, it is not only the cellular system defectively
applied, save a few exceptions, but also all prison penalties
that are facing a crisis. After a century of penitentiary
reform, never has the prison been attacked as in our days.
It is at this point that Kropotkin's name is coupled with
that of statesmen of all countries. The reader can find a
large collection of significant phrases in the last chapter of
Colajanni's " Criminal Sociology," devoted to repression as
a powerful factor of crime. The delinquent himself has
expressed his opinion of prisons in ail the documents which
modern literature collects under the title of penitentiary
palimpsest. Far from the Dantesque visions which the
jurists imagine through a psychological automorphism, " he
who has seen a prison," said some time ago Lauvergne, one
of the first to make a direct examination of prisons, " can
boast of having witnessed a picture of happy life."

" Qua sol trovi i fratelli e qua gli amici,
Danari, ben mangiare e allegra pace;
Fuori sei sempre in mezzo ai tuoi nemici,
Se non puoi lavorar muori di fame." 2

The penitentiary is only an accident of the profession not

1 The cellular system has rightly been opposed from this point of view.
Read, as an example of severe sentimental criticism, E. de Goncourt's
Fille Elise ; a novel of great interest for criminologists, since it is the story
of a prostitute who committed murder in a fit of psychic epilepsy. She
was condemned to death, but the penalty was changed to life imprison-
ment in an institution on the Auburn plan. The struggle against the rule
of silence forms the main episode of the story. Elise finally succumbs.
When visited by an illustrious philanthropist, the sub-prefect asks her
to speak, but she does not answer, she has become dumb. " Sub-pre-
fects," says the novel in conclusion, " lack the power of bringing the dead
back to life."

2 " Here alone you will find brothers, friends, money, good fare, and
cheerful peace; outside you will always be in the midst of your enemies,
and if you find no work you will starve." Quoted by Lombroso and re-
produced by Garofalo in his " Criminalogia," p. 223.

§ 39] MODERN THEORIES OF CRIMINALITY 183

to be greatly feared; it is a higher school in which to continue
its practice, and even a resting place from the agitated life
of the career.

Hence the discredit cast upon the prison. Hence why,
from Kropotkin to Griffiths, we continually hear that " a
prison can never be bettered, it is necessary to do away with
it."

In fact, the penitentiary is losing ground every day. The
substitutes offered for short sentences diminish its usefulness.
Domiciliary arrests, reprehension, securities, work outside of
the jail, are daily becoming popular and cutting off the retreat
of the penitentiary in the latest criminal codes and drafts.
On the other hand, deportation tends to rob the prison of
long terms and severe penalties. So general, persistent, and
uninterrupted is the movement that for a time these efforts
seem like two workmen who, attacking an obstacle from op-
posite directions, hear their blows getting nearer and finally
meet at the same point.

The famous and moving episode of Pinel, when, together
with the asylum warden Pussin, who had already practised
similar ideas, he unfastened the chains of the insane,1 has
been cited everywhere by many thinkers of distinct tenden-
cies. By many, from the radical Kropotkin to Solovieff, the
episode has been cited, at times in the imperative form of an
ideal desire; at other times, by those who abominate it,
as a fearful intimation of what the future has in store. On
examining this variety of opinions, one cannot help asking
in a concrete form: Will prison penalty be abolished as was
abolished imprisonment for debt, and as will shortly be
abolished the subsidiary prison for civil responsibilities?

1 The first was a madman, the soldier Clu-vinjro, who burst into tears
when he saw himself treated for the first time in a humane and kind way.
From that time on, he remained in Pinel 's service, whom he nevr aban-
doned, according to the historians who record this memorable episode.

184 MODERN THEORIES OF CRIMINALITY [§ 39

The word abolition so often used in these pages — and for
no other reason than for its frequent use around us — must
not be taken in the sense of destruction, as one might be tempted
to take it. Someone has said that the snake gets rid of its
skin because it has already another defensive epidermis
ready. So with men; behind every abolition there is another
law that perpetuates in more delicate and happy forms a
common idea whose continuity is not being destroyed by the
novelty.

Looking around at what happens in the world for an answer
to our question, we notice that while one thing disappears
another takes its place. Simple deprivation of freedom re-
appears, and if this means prison, then the prison persists.
But when we connect this word with the mass of ideas sug-
gested by prison penalty, we can hardly make the same
statement.

In the first place, these new institutions for delinquents
are not called by any of those names whose most developed
form corresponds to the penitentiary (casa de fuerza). They
are called reformatories^ bridewells, etc., and therefore their
inmates are not called convicts* but inmates, wards, etc. Even
the exterior of these institutions offers a contrast to the
imposing fortresses of the old regime; for, being light con-
structions for recreation surrounded by gardens, their walls
are of brick and not of granite, and their windows have more
glass than iron bars. What shall we say of their interior if
such is the exterior? They contain all the means with which
to reorganize human life. A choice and intelligent staff:
psychologists, pedagogues, physicians, etc., carefully apply
them, studying their effects and results.

Excellent institutions of this type are found scattered in
civilized countries. Some of them, the most numerous, are
for children and young delinquents; others for men; and a

§39] MODERN THEORIES OF CRIMINALITY 185

smaller number for women. England and the United Ski
the promised land of penih -nt iary reform, possess the largest
mumber and tlie most noted. They differ somewhat according
to the civilizations of the two countries. The English institu-
tions have a simple, almost severe aspect; while the American l
are sometimes sumptuous and a little extravagant.

The Elmira Reformatory can be called the archetype of
them all.2 It was founded by an act of the New York legis-
lature of 1876, chapter 207. It can be said to be the living
expression of all that has been accomplished in regard to
crime and punishment for many years, " the most advanced
institution in the world/* " the first that has shown in a
practical way what men must do in order to act rationally
and humanly, and at the same time the just and utilitarian
treatment of delinquents." But, it did not drop out of
the sky, and cannot be considered perfect. The first remark
is suggested by writings which represent it as without an-
cestors, forgetting an entire generation of not less remarkable
types associated with names like Suringar, Ducpetiaux, Ober-
maier, Guillaume, Maconochie, Crofton, Lucas, and so many
others who have little by little gathered all the stones of the
great edifice. The second seems an idle remark, for nothing
is perfect in this world. But, when in the midst of so many
kind attentions and cares which comfort the soul and fill

1 After the establishment of the Elmira Reformatory, which is really
the greatest penal institution of our times, this extravagance has
become more apparent in similar institutions, which, biking it as a model,
have sought to excel it. But the ridiculous is as distant from the sublime
as the Tarpean rock is from the Capitol. It is not to be wondered at how
far certain imitations have gone. In Aschrott's excellent work (Aiu
dem Straf und Gef&ngniswesen Nord Ameriktis, Hamburg, 1889), the
reader can find data on this degeneration and extravagance. At the
Boire"e given by the inmates' club, at which Aschrott himself was present,
full of astonishment, the inmates were all in evening dress with a fash-
ionable flower in the buttonhole.

2 Dorado, El Reformatorio de Elmira, Madrid, 1398.

186 MODERN THEORIES OF CRIMINALITY [§ 39

it with hopes, we recall the presence of corporal punishments,
the whip, and the red-hot iron,1 one ends by believing that
there is something monstrous even in connection with the
Reformatory. The cells which can be deprived of natural
light represent the last vestige of the traditional dungeon.

Perhaps, even this Reformatory possesses no scanty measure
of mechanism and rigor, as seen in its clear-cut and un-
compromising classifications and gradations. Something
might even be said on the life in common of the inmates.
But, after all, it is the only institution where it has been
possible for " a delinquent by instinct, whose criminality has
found a favorable environment in which to develop, absolutely
ignorant, without employment or means to honorably earn
a livelihood, and with a weak and vicious physical organism,
to be so benefited as to come out strong in health, with an

1 Towards the end of 1892, the New York press denounced the practice
of corporal punishment in the Elmira institution, affecting popular
opinion so much that the Governor of the State was obliged to appoint
a commission of investigation composed of a judge, a lawyer, and a physi-
cian. The Board of Managers in the meantime suspended Mr. Brockway,
the Director of the Reformatory, from office. At the time, it seemed that
the institution had kept the matter of corporal punishment secret, even in
its annual reports to the Legislature. The Commission, undoubtedly, was
expected to find out whether the measure had been abused, and to decide
whether, granted the positive legislation, this means of discipline was
legal or not. It was found that two corporal punishments were bein»
practised at Elmira: the whip and the red-hot iron, in order to force
rebellious inmates to leave their cells; but that it was done only as a
threat, and that they were never applied to the body. As for abuses
and cruelties, the Commission discovered only one serious case. The
opinion was that corporal punishment was being wisely applied by the
General Superintendent in person. Undoubtedly, the judge and the
lawyer believed that it was not strictly according to the laws of 1847
and 1869. The Board of Managers also believed that ch. CCCLXXXII
of the law of 1869 limited corporal punishment to federal prisons. The
result of this incident was to justly reinstate Mr. Brockway in office;
f nt corporal punishment was abolished, beginning from the 26th of
September, 1893. The proceedings of this investigation were published
to the Nineteenth, Year Book, 1899.

$ 391 MODERN THEORIES OF CRIMINALITY 187

education suitable to his condition, and with a trade or manual
skill which he can put to use in an honorable environment." l

How this is being accomplished, the reader will find in
Dorado's book. Here we can only give a resum6 of Mr.
Brockway's account of the means employed in the Reforma-
tory for the correction of the inmate>, M keeping in mind that
they are given in the order of their efficacy, that is, in the
order of the greater or less promptitude with which the
inmates respond to their action, as it is diown by the progress
obtained in the most susceptible of them ": 1. The de>ire
for freedom, used for the amelioration of the individual by
means of the indeterminate sentence and the monetary
marking system. 2. The stimulus derived from the division
into grades by means of the increase of comforts and privileges
as they pass from the lowest to the highest, and the different
wages which they earn in the various grades. 3. The benefits
derived from a perfect system of education including all the
inmates, from the most ignorant to those having received
an academic training, and which is imparted by means of
progressive methods. 4. The beneficent influence of military
organization and drill, carried on persistently, which give in
substance the same military education as the best conducted
military academy. 5. The technical and industrial education
given to all the inmates, which affords them the best practical
preparation for life as free men with a profession or a lawful
occupation, and whose chief aim is to enable them to earn
their living by their own efforts as workmen in legitimate
occupations.2 6. Physical training scientifically taught in

1 Words of Dr. A. Flint, President of the New York State Medical
Association, quoted by Dorado.

a This ought to be the nature of the work assigned to delinqu< -•?•
means for honest life — the best way to obtain it, — and not a punish-
ment as it has been customary. Compare the " hupo wheels the prisoners
had to move with their feet, developing power enough to operate a thou-

188 MODERN THEORIES OF CRIMINALITY [§ 39

a well-fitted gymnasium by a competent instructor under the
supervision of the physician of the institution. 7. Manual
training for those afflicted by some peculiar perversity due
to the lack of development or disorder of the mental faculties.
8. A progressive use of adequate elements of nutrition, so
as to build up the tissues, and to produce or favor good health,
to strengthen and tone up the nervous system, and to promote
habits and aptitudes for the exercise of a regular and continu-
ous work.1 9. In addition to all these measures, they bring

aand mills," as reported by Bentham, who found this occupation —
which has lasted in England till a short time ago — excellent, " being
nothing else but a different way of climbing a hill "(/). According to this,
death penalty is only a different way of beginning another life.

1 These three items deal with the education or medical treatment of
the delinquent imparted through three main agencies: a. Physical
education, so powerful — especially with the Saxon race — as to revive
the Olympic games in our days; b. The teachings of modern psycho-
physics, which show in the character of each individual the r61e played
by his peculiar anatomy and physiology; c. The teachings of criminal
anthropology, which point out in every delinquent what is abnormal and
pathological, whether it be much or little, horrible or imperceptible at
first sight. Thus arose the idea of a physical treatment for delinquents,
since the physical in them, as in every person, is a factor of their conduct.
In Elmira, for instance, they adopted since 1895 a series of bodily exer-
cises to strengthen and balance the psychic functions by means of certain
manual activities, chosen and expressly prescribed for determinate groups
or individuals; for, physiology teaches that for every part of the body
submitted to the exercise of the will there exists a cerebral center that
regulates its movements (cf . Ferrero's Le ultime esperienze del Riformatorio
di Elmira, in the Archivio di Psichiatria, XVII, 631; and Twentieth
Century Book, New York State Reformatory, 1896). Certain medicines
and drugs (like bromure and copper for epileptics, phosphorus for the
weak-minded, mercury and gold for eyphilitics), certain surgical opera-
tions(the boring of the skull for traumatic epilepsy, etc.), and normal
and hypnotic suggestions for some cases, have been proposed and are
already being tried (cf. Lombroso's paper read before the Geneva Con-
gress on the " cure of the occasional and born delinquents, according to
•ex, age, type, etc."; Vaudelet's De V education physique rationale clieat
Ut jfunes detenus, Paris, 1896; the works of Berillon on suggestion, etc.).
All this suggests remarks which would be too lengthy for a foot-note.
It suffices to point out what we have, which in itself is enough to suggest
the tame ideas in everybody.

§ 39] MODERN THEORIES OF CRIMINALITY

into play moral and religious influences so as to increase
and strengthen the ethical power of the inmates.1

In short, the system is based on the application of intelligent
corrective methods, extended over a sufficiently wide jxjriod
— although fixed,2 — with conditional freedom as a test.

The Board of Managers governing the Reformatory acts,
also, as a Parole Court, and grants conditional freedom on
parole four times a year. The General Superintendent, or
Director, acting as a reporter in these procedures, gives an
account of the deserving candidates. They appear before
the Board and undergo a kind of examination showing Ih^t
they are fit for social life. In general, the candidates presented
by the Director are nearly always released on parole; but,
the inmates whose names are not included in the list, can,
always under the general provisions of conditional freedom,
appear before the Board and solicit the release in person.

After a man has been released on parole, he will not enjoy
his privilege immediately. Two requisites must still be met.
First, the Superintendent and the Board find him a steady
and suitable occupation; and, secondly, he must earn in the
Reformatory shops the necessary means of transportation
to the place assigned him, and must live at his own expense
as soon as he receives the first payment for his work as a
free man.

When these two conditions have been fulfilled, the Super-
intendent states that he has found employment for his charge.
The Reformatory report, on the other hand, mentions the

activity the paroled has displayed in the shops in order to

i Year Book of 1895, p. 25.

* During the first years of its existence, the sentence was indeter-
minate only when it represented the minimum term. But, afterwards,
by the Fassett law of 1889, the system was suppressed. After that, both
maximum and minimum terms were fixer! in the sentence. In either case,
the duration of the treatment wavers according to the conditions of th*
delinquent.

190 MODERN THEORIES OF CRIMINALITY [§ 39

enter upon a life of freedom. Then the paroled receives a
certificate of provisional freedom. This credential or passport
is not like the shameful yellow paper of the discharged convict,
which has caused so much oratory, the paper that sent Jean
Yaljean back to a life of crime. The Reformatory certificate
is couched in words full of respect and trust for the man who
is supposed to be reformed. The Board imposes certain
conditions which he must fulfill in order to obtain ultimate
freedom. At all events, it offers him the protection which it
is able to grant for the last time. The most important con-
dition is that he must make a monthly report of his life, which,
examined and indorsed by the agents who are to be found in
every State of the Union, is sent to the institution. These
agents, like the Probation Officers, although without the
public character of the latter, protect and watch over the
paroled.

At the end of eighteen months, or less when the maximum
of the sentence does not cover that period, the provisional
freedom becomes absolute if the paroled fulfills the conditions
and the reports of the agent are favorable. Otherwise, the
Board of Managers appoints a commission of investigation
or sends a Transfer Officer, who is equipped with a regular
prison warrant, and, on verification of the bad behavior of
the paroled, brings him back to the Reformatory. The
paroled who loses his employment or occupation returns also
to the Reformatory, but not as a prisoner.

As can be seen, the whole system is a happy combination
of the principle of conditional freedom with that of super-
vision.

Doubtless, it is difficult to recognize by exterior marks the
purely internal and invisible change that can take place in
the mind of the delinquent. The most painstaking psycholo-
gist can be deceived. But, does not the same thing happen

§ 39] MODERN THEORIES OF CRIMINALITY 191

in the treatment of the child by the father, of the pupil by
his teacher, and of the patient by the physician? Do any
of these renounce or give up the task?

The man to be reformed does not come down from the
clouds as an enigma to be solved. We know his antecedents,
we have direct observation, and the observation and experi-
ences obtained from many others with whom he must neces-
sarily have many traits in common. Elmira, for instance,
carefully keeps trustworthy notes of the past and antecedents
of every inmate and his family, draws up biographical sta-
tistics, and possesses human documents of the same nature.

Another indication is found in the inmate's behavior in
the establishment. Here we must mention an observation
made by all. In the penal systems with fixed terms, the
prisoner awaits the termination of his sentence in a complete
mental inertia which renders him less and less capable to
guide his own destiny. Convinced that the last day of his
term will come without his doing anything, his interest lies
in simply adapting himself to the mechanical treatment of the
establishment in order to avoid disciplinary punishments
and to gain the good will of the chiefs and employes. His
conduct, far from being bad, is really exemplary from this
point of view. All agree, strange as it may seem, that the
worst delinquents make excellent prisoners. This kind of
behavior, then, cannot accomplish the desired end. The
behavior to be desired must be the result of the activity of
the faculties and conditions peculiar to each man which will
help him to earn his freedom, and enable him to hasten it
or lose it indefinitely. To give him his freedom means to
suppress in him personal effort upon which his redemption
depends.

During the experiment, the moral worth of the individual
cannot help revealing itself to the eyes of the Director of the

192 MODERN THEORIES OF CRIMINALITY [§ 39

•

prison; even if he happens to have been recently appointed
to the care of souls, from him must be expected the virtue
and the inspiration accompanying the office of his priesthood
or of his magistracy. The limitations that surround the
trial of social questions will often hinder the testing of the
specific character of the delinquent (murderer, swindler,
lewd . . . )> wno must be examined through his general
aptitude in a place lacking the means and the incentives that
might betray him. In case of relapse, the man who was
thought reformed must be returned to prison, the same as a
discharged patient who not seldom must be resubmitted to
the former treatment, as the absolved sinner who confesses
the same sin to his spiritual adviser, or as the pupil who
recites the same lessons to his teacher. It is an incident that
accompanies every educational work without exception.
But, while the system of conditional freedom tries to overcome
this as far as it is possible by advocating a gymnastics of the
will that may strengthen and reform it, not otherwise than
muscular exercise hi producing strong men and intellectual
exercise in producing logical men, the system of captivity
fixed by the law crushes the little corrective energy that
remains, and at the hour appointed returns the delinquent
to society without worrying over the certain relapse.

Death penalty. — Whether there are incorrigible delinquents
or not, the question of death penalty still exists, mustering
arguments from the philosophy of every epoch. The question
resembles in some of its features that phenomenon which
scientists call mimitism.

After having clothed itself with the philosophical doctrine
of every epoch and borrowed the arguments accepted by all,
to-day, at the height of a Darwinistic age, it calls upon the
law of selection for further argument. In vain one looks in
the work of the great naturalist for a passage upon which

§ 39] MODERN THEORIES OF CRIMINALITY 193

to base the selective function of the death penalty. Hackel
is the one that affirms it,1 and upon liis words its advocates
wish to base the simple argument. Lombroso favors it at
times; 2 Garofalo does so always. According to the latter,
social authority by allowing itself to be seduced by the
advocates of abolition will act contrary to the progress of
science.

In reality, it is to Ferri that we owe the turning point of
this current in favor of the death penalty in modern Italian
criminology.

First of all, Ferri remarks that the selective point of view
(Darwinistic, although not in Darwin's mind) must be
complemented both in the natural and in the social life
by the point of view of adaptation to environment
(Lamarckism) ; so that the influence of the social environ-
ment upon the pathogenesis of crime must have as much
value when dealing with the social sanction against crime
as when dealing with the rehabilitation of the criminal in
social life.

On the other hand — going back to the point of view of

1 " Death penalty has an immediate good result, because it is a process
of artificial selection." (Hackel's Naturliche Schopfungsgeschichte, quoted
by Makarewicz in his Evolution de la peine, who considers death penalty
" as an infallible remedy to purify the atmosphere.")

2 The second French edition of " Male Offender " contains, as an
expression of support which pleased Lombroso most, a letter from Taine
ending thus: " Your book shows us lewd orang-outangs with human
faces, who, being as they are, cannot act otherwise. If they kill, rob, or
commit rape, it is due to their nature and their past. One reason more of
getting rid of them as soon as they show that they are and will always
be orang-outangs. From this point of view, no objection ought to be
raised against the death penalty as long as society is benefited by it."
But, who will prove that they are and will always be orang-outangs?
Lombroso has nobly declared afterward?, in a letter to the French deputy
Reinach, that having been an advocate of the death penalty at the
beginning, long reflection led him to finally oppose it (Cf . Scuola Posiliva,
1906).

194 MODERN THEORIES OF CRIMINALITY [§ 40

selection, — if penal justice is to be an exclusive function of
artificial selection, then it ought to have the logical and
practical courage of inflicting the death penalty on a large
scale, and make true hecatombs surpassing the proportions
in which it was applied in the Middle Ages.

De Flury, who does not lack this courage, demands, among
other repressive measures, the " mitigation of the means and
the multiplying of executions." 1 Garofalo shows the same
courage when he tries to prove that the execution of born
criminals would not arouse the sympathy of any one; be-
cause, sympathy proceeds from resemblance, and, psycholog-
ically speaking, nobody can feel sympathy for them; and
because, when the deed, apparently evil, is committed with
altruistic ends, it offends no one.

Yet, the abolition tendency is spreading with more or less
intensity and fluctuation everywhere, including Spain itself.

Section 40. (3) PREVENTION OF DELINQUENCY.

Thus far we have dealt with the treatment of delinquency
aiming at preventing relapse. But, would it not be possible
to anticipate crime and apply a similar preventive agency
when less grave symptoms revealed the diagnosis of the evil
and the prognosis of the necessity of a corrective treatment?

Hence there arises the idea of prevention before criminality,
starting with situations and states bordering upon it, and
spreading thus through successive circles over the entire
social environment as a part of what English writers call
Eugenics, or the arrangement of influences which improve
the quality of the race.

Starting with the idea of successive circles, we reach the one
immediately surrounding the focus of criminality, the smallest

* V&me du crimind, Paris, 1898.

§40] MODERN THEORIES OF CRIMINALITY 195

and most intense, and consequently containing the prevent! vc
activity directed upon the combined dangerous and equivocal
classes that constitute the borderland of the criminal
world.

The most important of these classes is represented l>y
vagrancy, which becomes even the generic symbol for the
rest.

There is nothing more variable and heterogeneous than t he-
legal conception by which the defensive mind of legislators,
rising against all logic, binds together, under pretext of a
crime per se or an aggravation of some accompanying offense,
all kinds of suspects, including sometimes even the sick.1
And, indeed, even after reducing vagrancy to its natural
trait — namely, inability for regular and continuous work,
and, consequently, social segregation with a posterior para-
sitical readaptation, — we find in it differently constituted
individualities, as:

a. The ethnical vagrancy of transplanted peoples who lead
a nomadic life and move among communities enjoying an
old and stable civilization, like the rivers which for a certain
time cut through the surface of the sea without mingling
with it. Such are the gypsies — already diminishing in
numbers — and the other nomadic peoples of the Balkans,
where the mountains separate and defend Europe from
Asiatic immigration;

b. The atavistic vagrancy through ancestral influences
which determine incompatibility with civilized life;

c. The physiological vagrancy of children when it is due
to a simple inner impulse, which represents in the individual
ontogeny the nomadic phase of the racial pliilogeny;

1 " The general fear caused by tho postilonco " — wrote Florian and
Cavafflieri (7 Vaqabondi, Turin, 1897-1900) — " induced tho legislator to
treat persons infected with the plague as vagrants " (I James, 1, ch. 31).

196 MODERN THEORIES OF CRIMINALITY [§ 40

d. The pathologic vagrancy dependent in its causation and
progress upon various psychopathic states;

e. The economical vagrancy due to social conditions (lack
of occupation, the breaking up of the family, criminal record,
etc.)> which, in the long run, fixes itself upon the personality
and becomes hardened.

From the abandoned child to the human wreck which Gorki
calls " ex-man," 1 the vagrant class, to which Florian and
Cavaglieri have devoted the most painstaking work perhaps
ever published, offers without doubt some dangerous char-
acters — from the simple thief to the Sadistic murderer —
although it numbers also varieties truly inoffensive.2 From
this point of view, Konn 3 divides them into the antisocial
and the extrasocial class: the latter composed of primitive
types, hermits, preferring the country; and the former
including degenerate types of the city, like panders, apaches,
etc., who live in bands for the sake of the gay life, for fear of
solitude, and also for love of depraved pleasures.

Many of them lead this life from childhood. Therefore,
our attention is called to that part of the problem which deals

I Cf. our study: Los vagabundos segdn Maxim Gorki, in the volume:
Alrededor dd delito y de la pena, Madrid, 1904.

9 Such as Onteime Love", a former University professor, who answered
his judge in Alexandrine verses:
" What is your name? "

" Onteime Loyt, c'est ainsi qu'on me nomme."
" Your age? "

" Voila bien cinquante ans gue je suis honnete homme."
" Where do you live? "

" IjO. terre est mon seul lit; mon rideau le del bleu."
" What is your profession? "

II Aimer, cfutnter, prier, croire, espfrer en Dieu."
" Why were you found begging? "

"J'avais /aim, magistral; aucune loi du monde."
" Ne saurait m'arr&ter, quand mon estomac gronde." (From a French
communication to the Corriere della sera, November, 1905.)
1 Gazeta Sizitawa Warzawska, 1906.

§ 40] MODERN THEORIES OF CRIMINALITY 197

with the abandoned child, and which is of such importance for
penology; for, as Morrison remarks,1 the passage from oc-
casional to habitual delinquency rarely takes place in the
adult age.

The efforts displayed for the reduction of vagrancy are
many and always interesting. The interest grows when we
study child vagrancy. This is due chiefly to sentiment; for,
neither valetudinarian neglect nor adult pauperism engraving
upon the walls their pictures of misery move us as does un-
happy childhood. But this sentimental impulse is accom-
panied also by thoughtful reasons. Every protected child — as
someone has said — represents a rescued generation. More-
over, the rescue can be accomplished with the minimum
effort, and with the maximum result compared with the effort
required for the regeneration of adults. Therefore, without
neglecting the latter, the efforts are especially focused upon
the young.

In Juderias' " The Protection of Childhood Abroad," 2 the
reader will find the most complete exposition of the laws and
institutions adopted in the civilized world. We will only
add that the traits which best characterize the movement
are the principle of guardianship and the placing of minors
among homelike surroundings, where moral influence will
improve their psychical organism. This represents a fruitful
renewal of the old cellular system based upon better biological
foundations. For, instead of isolating the subject between
the four walls of a cell, he is placed in a living cell, namely, an
honest family into which he can be more easily jil»snrlx»d.

Continuing our simile, if we pass to a second circle of wider
prophylaxis, we shall find that the struggle against alcoholism

1 Juvenile Offenders, London, 180ft. Joly, Raux, Fcrriani, Cuello
Calon, Guarnieri Ventimiglia, etc., aro (if tln> s:mio opinion.
3 La proteccidn d la infancia en el extranjero, Madrid, 1908.

198 MODERN THEORIES OF CRIMINALITY [§ 40

on the part of modern communities is as intense as the power
of alcoholism itself. Thus, the writings on this subject —
alcohol, alcoholism, and antialcoholism — take up in Abder-
halden's bibliography more than 500 pages, with 15 or 20
titles in each.1 We will add a few works published later.
On the relation of alcoholism and criminality we have Hoppe's
'* Alcohol and Criminality in all its Relations," 2 and Pistolese's
" Alcoholism and Delinquency." On the campaign against
alcoholism, there is J. Bertillon's " Alcoholism and the means
of fighting it according to experience," 4 and Miomande's
" The Struggle against Alcohol." 5 Baudry de Saunier's
" His Majesty, Alcohol " 6 treats of both topics.

This campaign is of great interest to criminology, since a
large number of crimes are due to alcohol and the tavern, now
directly and indirectly as illustrated by the so-called " al-
coholic murder " (caused by acute intoxication without
apparent motive and followed by amnesia [Sullivan]), now in
an indirect, distant, and very remote way, as in the crimes
committed by the descendants of drunkards. Criminology
is interested also in the means adopted to fight the evil, from
the system — somewhat naive and trusting too much in the
omnipotence of the law — of absolute prohibition of the sale of
all alcoholic drinks, reserving it only to druggists as it was
at the beginning, to the high tariff on alcohol, which, although
diminishing the output, increases the strength, and the most
profitable systems, as that of limiting the number of licenses
and that of leasing the monopoly of alcohol to corporations of

1 Bibliographic der gesamten wissenschafttichen Literatur uber den
Alkohol und der Alkoholismvs, Berlin and Vienna, 1904.

1 Alkohol und Kriminalitttt in alien Beziehungen, Wiesbaden, 1906.

1 Alcooli&mo e delinquenza, Turin, 1907.

4 L'alcool et lea moyens de le combattre jugte par V experience, Paris, 1905.

* La lutte contre Valcool, Paris, 1906.

• 8a Majette VAlcool, Paris, 1906.

§ 41] MODERN THEORIES OF CRIMINALITY 199

public utility.1 To this must be added the spread of tem-
perance societies and of drunkards' axylunifi. Finally, there is
what Ferri calls the social remedy, the uplifting of the common
life (reduction of the hours of labor, raising of wages, more
attractive home life, hygienic amusements, etc.), which will
attenuate and eliminate alcoholism from the lower classes
of society, as it did the drunkenness of the well-to-do classes
so widespread in the Middle Ages, and which has almost
disappeared on account of the great change wrought in their
social conditions.2

Finally, reaching the last circle — after culture, refor-
mation, and fully applied justice, — it is interesting to
mention measures like the establishment of public baths and
the rebuilding of forests for the modification of impulsive and
sanguinary tendencies; for the trees help in bringing system-
atic rains which they retain, thus changing a dry, exciting
environment into a damp, sedative one.

Section 41. (4) REPARATION OF THE INJURY CAUSED
BY THE CRIME.

Ought the criminal system to take more thought of the
indemnification of the victims of crime? This question has
for several years been the order of the day of all Congresses
of penal science; for, as Prins says,3 " modern criminal law
has altogether neglected the offended party and the entire
notion of the reparation of the injury in order to give promi-
nence to the Public Prosecution exercising justice in the name
of all."

1 The Gotenburg system, the most efficacious of all ; cf . Laquer's
Gotenburger System und Alkoholismus , 1907; Rubenson's Das Gotenburger
System, etc., Leipzig, 1907.

2 La justice pfnale, son evolution, ses dffauts, son avenir (Brussels,
1898), paragraph VII.

3 A paper read before the Congress of the International Union of Crim-
inal Law at Christiania.

200 MODERN THEORIES OF CRIMINALITY [§41

Bentham and Spencer have been prominent in our century
in calling attention to this memorable criminal question.
Spencer's theory set forth in his " Essay on the Morality of
Prisons " is very interesting. Proceeding with his characteris-
tic method of illustrations, he tells us how criminal reformers,
like Maconochie, Crofton, Mettray, Obermaier, Montesinos,
etc., have best known how to rid themselves of the old con-
ception of the jail, keeping its doors wide open and giving
more freedom to the prisoners. Therefore, he proposes a new
treatment which seems to bear some analogy to the two types
of society which he considers fundamental, namely, soldiers
and merchants. This system is, in fact, a new manifestation
of the contract; it is the security or the bail for the judgment
of penalties. According to Spencer, the duration of the penalty
must depend on the time the culprit takes to make reparation
for the injury caused by the crime, granted a creditable
person takes him under his protection and promises to return
him to the authorities as soon as he sees him go wrong. Thus,
Spencer believes to find a kind of automatic regulator; for,
the author of the most loathsome crime would never find a
person to go security for him, and his custody would be per-
petual. Recidivists would also find it difficult; while the
authors of light or excusable offenses, the injury once re-
paired, would be exempt from punishment on account of the
facility with which they would find security and also on
account of their good behavior.

Among contemporaries, Garofalo advocates in his " Crimi-
nology," in his " Indemnification of the Victims of Crime," !
and in various papers read before Congresses, a system which
demands the strict obligation of repairing injury as the only
repressive measure for certain light offenses committed by
delinquents from whom, on account of their behavior and con-
alle viUime dei delitti, Turin, 1887.

§41] MODERN THEORIES OF CRIMINALITY 201

dition, no relapse is to be feared. For these a double fine
would suffice, one for the benefit of the State as a reparation
for the disturbance caused and a reimbursement of costs,
the other for the benefit of the injured party. As the trunk
returns to the trunk and the root to the root according to a
maxim of our common law, so the two brandies of the system
of penalties whose bifurcation is pointed out by Makarewicz —
the fine and the civil compensation — come together in this
theory.

But, how can these reparations be ob tamed?

" As for solvent defendants," says Garofalo, " extreme
severity should be adopted. The injured party ought to
have a judgment lien on the defendant's real estate and a
special creditor's lien on his other property; and this not
from the time the final sentence is pronounced, but from the
time suit began. This would give the defendant no time to
dispose of his property. In case the injured party renounces
the indemnification, the defendant ought to be compelled
to deposit the corresponding fine in a fine fund destined to
advance sums to indigent persons who have suffered in con-
sequence of crime. As for insolvent defendants, they ought to
be compelled, for the benefit of the State and of the injured
party, or, in case of renunciation, for the benefit of the fine
fund, to hand over the share of their income beyond what is
absolutely indispensable for the strictest necessities of life,
namely, board and lodging. In the case of factory employes,
the employers should be compelled to retain the wages of
the defendant save what is absolutely necessary for his sup-
port. Finally, those who prove unmanageable, those who find
it impossible to save, the vagrants, the idle, and those without
a home, should be compelled to join a gang of laborers working
for the State. They would receive nominal wages not in-
ferior to those received by free workmen; the State would

202 MODERN THEORIES OF CRIMINALITY [§ 42

give them what it deemed sufficient for their maintenance,
and the rest would be gradually deposited in the fine fund
with which to indemnify the injured party."

Here we have, then, a complete plan of legislation defending
the interests of the victim of crime. Out of consideration
for these interests and also because of its being another means
to avoid short sentences, the International Union decided
that " in the case of slight offenses against property, there
is no necessity of pronouncing sentence if the non-recidivist
has previously indemnified the victim " (Christiania Session
of 1891); it recommended also in similar cases reconciliation
with the injured party. Perhaps, only in some cases, the
consideration for the rights of the victim is so great, that by
conceding to him also a kind of vindictive satisfaction, as
Bentham would call it, some writers (Garofalo himself, for
instance, in the case of the conditional sentence which he
does not admit without a previous indemnification to the
victim) subordinate the penal treatment properly speaking
to the reparation of the injury.

5. CRIMINAL LAW AND PENITENTIARY SCIENCE IN
SPAIN AND IN SPANISH AMERICA.

A. Spain.

Section 42. (a) Ideas.

" The characteristic peculiarity of Spanish penal science
at the beginning of the 20th century," writes Dorado Mon-
tero,1 " seems worthy of attention. The alliance of metaphy-
sicians and positivists on this question has never been better
realized than in Spain. We might say that correctionalism
furnishes the mold, the meaning of the penal function; and
that positivism contributes the data with which to fill this

1 Balance penal de Espafia en el sigla XX ; in the volume De Crimt-
nalogla y Penologia, Madrid, 1906.

§ 42] MODERN THEORIES OF CRIMINALITY 203

mold and which serve as a basis and a proof for that meaning.
Somebody in Ribot's * Revue Philo>opliique ' l has spoken
of a Spanish School. Never before could such a statement
have been made. . . ."

We already know that the origin of tliis phenomenon is
due to Roder's direct influence in our country. Ills correc-
tionalistic ideal drew later from Giner, Calderoii, and Mon-
tero, the progressive exposition binding together anthro-
pology and criminal sociology: a union which is not frequently
met elsewhere. Undoubtedly, it is to this that Richard refers
when he speaks of a " Spanish School "; but, even if not
so characteristic, the retrogressive deviations from that cor-
rectionalistic ideal are more frequent although minimized
in the case of magistrates (Gonzalez del Alba) and of peni-
tentiary experts (Armengol, Lastres, Cadalso, and esp<
Concepcion Arenal).2

Concepcion Arenal, a sister of the order of St. Theresa of
Jesus, lived in different times, and distinguished herself by
the intensity of her work.3 She addressed herself to the
delinquent as well as to judges and private citizens, and
aimed at the purification of the perverted penal function.
It would be impossible to call her a correctionalist as has been
done at times. " From no thought of correction," she wrote,
" they have ended by using nothing but correction; the

1 Alluding to G Richard, the distinguished critic of criminal sociolog-
ical publications in Durkheim's L'annfe sociologique, and always well
disposed toward Spanish productions.

2 Silvela, El Derecho penal estudiado en principles y en la legislacifin
vigente en Espafia, second edition, Madrid, 1902. — Aramlnirn's /. i
Nueva Ciencia penal, previously cited; tho notes in the transition of
Pessina's Elementos de Derecho penal; and YaMt's. Rued:i. ete.

Aramburu's work drew forth an answer by Ferri, included in his
Polemica in difesa delta scuola crimindle positiva (Bologna, 1SSG, including
writings by Lombroso, Ferri, fSarofalo. and FiorettH.

3Cartas A los detincuentes , Ufanual del risitador del preso, Estudios
penitentiaries, etc.

204: MODERN THEORIES OF CRIMINALITY [§ 43

prisoner is given lessons that may enable him to suffer the
least possible. The ideal seems to lie in correcting without
causing pain." Her main position in relation to the problem
seems to be one of neutralization of the correctional idea
by means of the conception of expiation through grief, which,
"when it is not made to play the part of the executioner
becomes a great teacher." Thus, more than penal science,
it is mysticism that we find in Concepcion Arenal.

Section 43. (6) Laws.

The integral reform of the present penal Code started
almost simultaneously with the date of its promulgation. In
1873, Minister Salmeron appointed a Commission which
during its existence succeeded in producing the first book of
a Code inspired by the corrective principle and including
the inevitable abolition of capital punishment. Then follow
the unsuccessful drafts drawn by Alvarez Bugallal (1880-81),
Alonso Martinez (1882), Silvela (1884), Villaverde (1891),
and Montilla (1902); the last was not even presented to
Congress on account of its reformatory tendencies. The Code
of 1870 — already in operation since 1848 — still stands on
its feet, aged and paralytic, while a few special laws try to
modernize it by placing it on a better defensive.

The principle of conditional sentence has finally become a
law (March 17, 1908), although organized in a timid and not
very original way. Another law, enacted the 31st of December,
1908, on the preventive detention of juvenile delinquents,
could not be more unhappy in its precepts.

No draft exists against recidivism; but it is amusing to
note an inferior substitute for the indeterminate sentence in
the police practice of the so-called " fortnights." l

»The "fortnights" treatment is applied to habitual offenders for
blwphemy. An article of the Provincial law (art. 22) authoriaes the

§ 44] MODERN THEORIES OF CRIMINALITY 205
As for conditional freedom, a first concession can be seen
in the state of resistance established by Uie royal decree of
May 6, 1907.

Finally, the death penalty is bound to disappear. A law of
April 9, 1900 (Pulido law), prohibited the puMirity of execu-
tions, alleging the immorality of the spectacle as one of the
reasons. A later draft, dated November 2, 1906 (Morale
draft), aims at its definite abolition.

Section 44. (c) Institution*.

The reform in the application of penalties, so backward in
our country, is making lately some intcn sting progWM.

Apart from the progress recorded only by the " Official
Gazette," that is, the reforms which were not carried out (like
the important royal decree of May 18, 1903, on the tutelage
and correction of prisoners), we will mention the founding,
through a royal decree of March 12, 1903, of a " School of
Criminology " for the training of the penitentiary personnel,
which is conducted under the direction of an appointed pro-
fessor (Salillas, Simarro, Cossio, Aramburu, Ol6riz, Anton).

Private initiative gave birth to the protective league.
That for juvenile prisoners in Madrid has been recently

Governors to impose upon those who blaspheme in public, as an offense
against public morals and decency, a fine not exceeding 600 ptMtot. The
said article has served as a basis for this law. As soon as an habitual
offender is known to the police, he is immediately considered a dangerous
subject and can be arrested as often ns they please so as to prevent his re-
lapsing. This is done through a juridical fiction by presuming that be baa
violated the above article. The maximum fine is then imposed, which,
through a presumed insolvency, is rhan^nl to imprisonment not exceeding
a fortnight; this can bo repeated indefinitely, thus taking the place of the
indeterminate sentence. In as far as -cation of juridical

customs, it is curious as well as inst n i< • • ice how, in the presence

of the necessity of defense not provided by ordinary l:iw--. it lias been
possible to devise a complementary system, which, rudimentary and
defective as it may be, presents traits of marked origin:/

1306 MODERN THEORIES OF CRIMINALITY [§ 45

founded and is trying the regenerative system of placing the
young in families.

Section 45. (B) Spanish America.

Among the various Hispano-American countries, Argentina
excels in penal and penitentiary reform.

Worthy of notice is the Argentina draft of penal Code of
1906, elaborated by a Commission composed of five lawyers
and a physician (Beazley, Rivarola, Saavedra, Moyano,
Gacitiia, Pinero, Ramos Mejia). It is true that on account
perhaps of the barbarity of some sections of the country
this draft includes the death penalty, yet it contains many
features which are in harmony with the modern tendencies
of criminology (a consideration of the motives of the crime
and of the antecedents of the delinquent, the individualization
of punishment, wide scope for judicial discernment, con-
ditional freedom, suppression of the cellular treatment
included in life sentences, of statutory limitations, of amnesty,
etc.).

Besides these drafts there was established in 1907 an
" Institute of Criminology " under the direction of Inge-
gnieros and connected with the National Penitentiary now in
charge of A. BallvS.1

The Institute enjoys a wider scope and greater intervention
in the administration of criminal justice than our *' School of
Criminology."

According to the by-laws, the institution will have charge
of all the studies becoming an Institute of Criminology. The
Director will plan the corresponding tasks, the books, regis-
ters, pamphlets, bulletins, etc., which he may deem necessary,
and will decide according to his scientific judgment upon the

1 Cf. Ballvd's La Penitenciaria national de Buenos Aires, Buenos Aires,
1907; and E. G6me*' Ettudios penitentiaries, Buenos Aires, 1906.

§45] MODERN THEORIES OF CRIMINALITY 207

methods of investigation which < riminological science has
adopted or is on the point of adopting.

Without interfering with the other tasks of the Insti'
a " medico-psychological bulletin " will be quickly issued for
every convict serving his term in the above- im-ntiuned estab-
lishment or hi any other; a bulletin to be filed with the general
memorandum of each prisoner and to be kept constantly
up to date (criminological clinic).

The Institute is also charged with the examination and
permanent study of all prisoners who show symptoms of
mental alienation and of prisoners supposed to be epileptics
alcoholists, or victims of some other physio-psychological
disturbance. For these cases, the Institute will make medical
reports dealing with the subjects studied and with the result
of the examination, which will be submitted to the judges in
charge of the cases or to be used in connection with further
trials in the case of persons against whom final sentence has
been pronounced (Criminal Psychiatry).

The Institute can also exercise direct intervention by under-
taking the appropriate investigation and examination of all
cases of actual or attempted suicide which are committed in
the establishment.

CHAPTER III.
SCIENTIFIC INVESTIGATION OF CRIME.

I. ORIGINS.
Section 46.

BY scientific investigation of crime we mean the application
of scientific data to criminal investigations which will guide
in establishing the identity of a suspect, in determining the
role a person or an object has played in a criminal matter, and
in detecting the methods employed by the various classes of
criminals.1

Studied from its origins, T/C can say that this function has
passed through three phases: (a) an equivocal phase, when
its personnel — including the chief of police, as in the case of
Vidocq — was recruited from the midst of the delinquents
themselves, believing that they were better acquainted with
the character and skill of criminals; (b) an empirical phase,
when the personnel not recruited from criminals struggle
against them in an empirical way with the aid of mere natural
faculties, common or exceptional as they may be, as in the
case of Auguste Dupin, Corentin, Lecoq, and Sherlock Holmes,
all fantastic characters created by Edgar Poe, Balzac,
Gaboriau, and Conan Doyle; 2 (c) a scientific phase, in which

1 This is the definition piven by Niceforo at the 6th Congress of Crimi-
nal Anthropology held in Turin, 1906. The last clause of the definition
is taken from Reiss' Lesmfthodes scieniifiques dans les enquetes judiciares,
in the Archives d'Anthropologie crimineUr, I'.MKJ.

8 On the last mentioned, cf. Bercher's L'auvrc de Conan Doyle et la
Police 9cicntiJ\quc au XX si tele, Paris, 1906.

§46] MODERN THEORIES 01

these natural faculties are coupled with methods of investiga-
tion based on observation and experiment.

When were criminal investigations formulated into a
science?

It may be said that the science has a threefold origin. Pint,
we have the work of the empiricists themselves (Vidooq in
France and Ave Lallemant in Germany). Then come the
practical criminalists who, at the beginning of the 19th
century, founded the so-called " judicial psychology' in
Germany (Metzger, Platner, Mittermaier). In direct line
with this movement comes our contemporary Gross, who
preserves its traditions and methods as seen in his " Manual
of Judicial Investigations as a System of Criminality," *M
" Criminal Psychology," l constituting with all the hetero-
geneous material of information useful to the judge, the police,
and the gendarme, what he calls Criminal i^tica, which is
not without very old precedents.2 Finally, legal me<l
and chemistry have offered and still offer an important
agency. The entire subject of the revelation of hidden traces
and the study of obvious ones based on organic principles
proceeds from them.

All these tendencies come together with the establishment
of Criminal Anthropology. Receiving their impulse from
the latter, they are being systematized in accordance with
modern Criminology. At the Paris Congress of Criminal
Anthropology (1889), Alongi, Ottolonphi, and Romiti spoke
of the possibility of the police making use of modern s»-
on the natural history of the delinquent.

1 Handbuch fur Untersuehungsrichter als System dtr KriminaKttik.
Graz, 1894. Translated by J. Adam in 1906. — /fomina/ptyetabtfir,
Graz, 1898; translated in the Modern Criminal Science Series of the
American Institute (Boston, Little, Brown, & Co.. 1911).

2 Manzini, for instance (in his TraUato di Din/to ptnale Italian

I, ch. I, paragraph 8, note, Turin, 1908), mention* Cospi's // ffi**<*
criminalista (Florence, 1643), which contain* even a chapter on Judicial
Astrology.

210 MODERN THEORIES OF CRIMINALITY [§ 47

The possibility has become a fact. Gross* books, Alongi's
" Manual of Scientific Investigation of Crime," * and es-
pecially the recent treatise by Niceforo on "The Police and
the Scientific Investigation of Crime " 2 bear witness to the
fact.

II. APPLICATIONS.
Section 47. (i) THE IDENTIFICATION OF CRIMINALS.

The problem of individual identification, especially in
reference to the delinquent's personality, is the most im-
portant of all.

When analyzed in all its magnitude, it divides itself into
two questions: (a) the determination of the author of the
crime; and (b) the determination of his penal antecedents.

The first question is connected with the general problem of
the investigation of the traces of the crime. The second
resolves itself into a determination of recidivism. But we
cannot separate them altogether, since every method used for
the determination of personality — and in this lies one of its
advantages — serves indiscriminately for both purposes.

From the point of view of both questions, the problem is
so important as to justify the efforts its wonderful solution
has called forth. First, then, it is necessary to discover the
criminal, who, perhaps, as experience shows, has had himself
arrested for a light offense in order to ward off the inquiry
into a serious crime. Secondly, it is necessary to discover
whether he is a recidivist or not.

In olden times, the second part of the problem was solved
by the simple and radical method of branding the criminal
with the pontifical keys, the French fleur-de-lis, or the L of
our abridged laws.

1 Manvale di Polizia scientific, Milan, 1R07.

1 La Police et VEnqukte judiciaire scierdifvjues, Paris, 1907.

§48] MODERN THEORIES OF CRIMINALITY -'11

The penalty of public shame in the pillory and at the
whipping-post can be also considered as pointing out the
criminal to the town with the same preventive aim.1

But the last method had a very limited sphere of at '
and the system of branding, although universal and in
was abolished with the humanitarian reform wrought into
penology after the appearance of Beccaria's work,
then that people felt the need of some bloodless method
the identification of criminals.

An account of the various methods devised can be four
Ramos* " Identification," 2 and in OrtiV " Criminologies!
Identification." 3 In general, these methods can be re-
duced to two groups: those of measurements and those of
description.

In the competition that ensued, the first group, after having
enjoyed a certain amount of popularity, yielded place to the
second. The reason for this is that while methods of measure-
ments are subject to the personal errors of the expert, those
of description — especially when applied through a natural
process — are not in such a danger, and are, therefore, more
trustworthy.

Section 48. (A) Anthropometry.

Alphonse Bertillon bases his system mainly upon
anthropometry of the subject.4

Every person who falls into the hands of the law i>
mitted to a series of tests whose object is to ascertain his

1 Cf . our book, La Picota (crimines y eattiyos tn d pai» catttUono m

los tiempos medios), Madrid, 1(.»(>7.

2 Da identijica^ao, Rio de Janeiro, 1896.

3 La identificacidn criminottgica, in the Derecho y Sociologia, Habaoa,

1006.

4 Instructions signalttiques pour I' identification

second edition, Melun, 1893.

212 MODERN THEORIES OF CRIMINALITY [§ 48

peculiarities both as to measurements and as to color, and
also his distinctive marks.

Peculiarities of measurement include:

a. Height,

b. Arm,

c. Trunk,

d. Length of the head,

e. Width of the head,

f . Bizygomatical diameter,

g. Length of the right ear,
h. Length of the left foot,

i. Length of the left middle finger,
j. Length of the left ear,
k. Length of the left forearm.
The description gives the color of:

a. Eyes,

b. Beard and hair,

c. Skin.

The special marks are:

a. Scars,

b. Moles,

c. Tattooings.

The result of the three tests is put down on a card and
filed with a photograph full front and in profile of the subject.
The Paris bureaus of judicial identity go through these tests
in five minutes, thanks to a system of abbreviations and to the
skill of the employes. They need no tachyanthropometers
as the one proposed by Anfosso in his " Central Court Cata-
logue." l This writer proposes also a descriptive system of
identification based on cranial profile (craniogram) and on
the opening between the forefinger and the middle finger
(digital triangle).

1 // CaMdlario giudiziario centrde, Turin, 1896.

§49] MODERN THEORIES OF CRIMINAL,

The card having been filled, an investigation is made to
see whether the bureau of identification has a similar card
describing the criminal record of tin <lc •linqurnt.

But, how can this be done, when, as in Bertillon's office,
there are hundreds of thousands of cards?

This difficulty has been overcome thanks to a system of
grouping the cards according to homogeneous measurements,
which reduces the number of those needed for comparison
to a few dozens.

Section 49. (B) Dactyloscopy.

All this is very ingenious. It is impossible to find two
exactly alike in measurements, in color and in peculiar char-
acteristics. But, the securing of these characteristics will
inevitably be accompanied with some error sufficient to cause
confusion. On the other hand, the Bertillon system, especially
as related to the examination of peculiar marks, leads to an
investigation in which personal dignity suffers. On this
account the problem was not considered as solved and a
better solution was sought.

The better and perfect solution has been found in the
descriptive method of dactyloscopy, that is, tin* investigation
of the papillary lines of the finger tips, whose structure is
permanent and lasting from the seventh month of womb life
till the decomposition of the textures after death, niul is
absolutely distinct in every individual.

Perhaps prehistoric observers were already acquai
with this peculiarity, according to a note by I vert ' in leferenoe
to some of Poirier's remarks; but the merit is due to Purkinje
of having made in 1823 the first anatomical description of the

1 ^identification pour les empreintes digitals palmairn, Lyooft, 1904.

214 MODERN THEORIES OF CRIMINALITY [§ 49

digital lines without conceiving the practical applications to
which it could be put.1

At the beginning (Herschell, Thompson), these applications
were limited to a kind of autographical, authentical signature
for receipts and civil documents by pressing upon the
paper in the manner of a seal one or more fingers soaked in
ink.

Galton,2 Potecher, and others applied the discovery in dis-
tinct ways to the identification of criminals. Finally, the
Argentine Vucetich has simplified the system so successfully
that his method has spread everywhere.3

Vucetich distinguishes only the following four main
types:

a. Arch (A, or 1).

b. Internal loop (I, or 2).

c. External loop (E, or 3).

d. Vertical (V, or 4).

An impression of the five fingers of each hand is made upon
the card; then, in view of the dactylogram obtained, one can
establish the dactylographic formula of the subject, represent-
ing the type to which each finger corresponds by preestablished
figures. The thumb is excluded and is designated always by
the letter of the type to which it belongs. Take, for instance:
V 3242 — I 3343

1 Roscher: Der Altmeister der Dactyloscopic, in the Archiv fur Kri-
minaJanthropologie und Kriminalistik, XXII, 1907. Purkinje distin-
guished as many as eight shapes of papillary lines in the finger tips:
Cl ) flexures -transversce ; (2) stria centralis longitud inalis ; (3) stria ob-
liqua; (4) tinus obliqus; (5) amygdalus ; (6) spinda ; (7) circulus ; (8)
vortex duplicatus. In our days, Kollmann has investigated the cause for
the distribution of the lines, and concludes that they correspond to the
space between the papillae, while the crests separated by them contain
the tactillpapillffi and the orifices of the sudoriferous glands.

1 Finger Print Directories, London, 1895.

* Dactiloscopia comparada, La Plata, 1904.

§49] MODERN THEOIU1 MNA1.ITY . 215

This formula represents a subject with the following papil-
lary structures:

f Thumb -Ver

Forefinger =• Kxtcruul loop
Right Hand < Middle finger »=» liu-

Ring-finger
|^ Little finger =• Internal l.*<*].

Left Hand 1

'Thumb - Internal loop
Forefinger = External loop (3).
Middle finger - External loop (3).
Ring-finger =- Vertical (4).
Little finger - External loop (3).

The combined ten alphabetical or numerical designatic
yield a large number of formulae which allow and facilitate
the classification of the cards.

But how can we compare two different prints of the same
type and obtain the identification?

Stockis sums up the various methods in his " Investiga-
tion and Identification of Finger Prints." 1
' .According to him, Windt enumerates the papillary lines
from the delta to the bifurcations, the ends of the lines, and
the points or lines fastened among the others.

Galton and Henry, tracing a line, join the center of tin-
print with the delta and count the lines thus crossed, the points
touching one another, etc.

Sarachaga bases his comparison of the distinct types of the
vertical on the number of lines, the elevation of tlu
the inclination (horizontal, oblique, vertical), and the direc-
tion (rectilinear or curvilinear) of the axis of the drawing,
the opening of the central angle of the print, and, final!
the apparent scars.

Roscher and Gasti emphasize the number of the lines and
the configuration of the crests composing the delta.

Vucetich compares, above all, the directive lines and

1 La recherche et V identification dr* rmpreinte* digitale* ; in the Rivuta
di Polizia giudiziaria scientifica, edited by Niceforo, 1907.

216 MODERN THEORIES OF CRIMINALITY [§ 50

the characteristic points (bifurcations, pitchforks, islands,

etc.).

Daae also investigates the characteristic points.

Giribaldi distinguishes the varieties of verticals, the scars
that can possibly cross the print, and the details of the lines.

Pottecher bases his observation mainly on the enumeration
of the lines.

Niceforo recommends the investigation of the directive
lines, the number of the furrows, the characteristic points
(starting point of the lines, bifurcations, rings, points), and
the casual or anomalous peculiarities (scars, pustules, syn-
dactyliae, etc.).

Finally, Reiss calls attention to the photographic method
of the superposition of the two enlarged pictures, the first on
paper and the second on a transparent film, or by passing
simultaneously in the projecting lantern two photographic
plates of the two prints natural size, one on glass and the other
on stiff film. In either case the identification is obtained
from the matching of the lines.

It is impossible to discuss the advantages and the incon-
veniences of all these methods. Their multiplicity offers a
serious obstacle for international investigations. Yet, the
advantages offered by Vucetich's system are such as to win
him popularity in both hemispheres. A place seems to be
reserved for his system in the international dactyloscopic
catalogue which some are planning.1

Section 50. (C) The Word Portrait.

The problem of identification seems, then, entirely solved
by means of dactyloscopic methods. Nevertheless, in some
cases — as, for instance, in the case of the arrest of known

1 Locard's Lea services octueh d' Identification et la Ficlie Internationale,
Lyon, 1906.

§50] MODERN THEORIES or CRIMINAL]

criminals in the street* or on the highway, — the method of
the word portrait becomes very useful. It is also due to Ber-
tillon, and can be traced to Leonardo da Vinci. tl.« most
versatile genius the world has ever known.1 The system is
fully discussed in lleiss' " The Word Portrait." 2

It simply consists in a description by conventional abbwvia-
tions of the peculiar traits of the face, which by means of a
system of annotations records with severe exactness the shape,
the contour, and the dimensions of the features.

We cannot give here the very extensive nomenclature of
the morphology of the various parts of the face; we can only
give a classification of their dimensions:

Very short =s
Short = s

Slightly short =(s)
Slightly long = (1)
Long =1

Very long = / 3

Influenced by one of Ottet's studies on the classification of
anthropometric cards based on the decimal system, Rciss, in
"Telegraphic Code of the Word Portrait,"4 thought of
changing the vocabulary of the word portrait into a simple
numerical system which is very logical and useful. He makes
ten decimals correspond to ten characteristics of the portrait;
thus, the forehead = 0,1; the nose = 0,2; the ear = 0,3; the

1 Cf. // portrait parle dato da Leonardo da Vinci; in the Scuola P<*i~
tiva, October, 1909.

2 Le Portrait parlt, Paris, 1905.

8 As can be seen the first letter of each trait is taken; therefore, in
Spanish, French, and Italian, the letters used are: p, p (p), (g), g, g. -
(Note of the Tr.).

4 Un Code teltgraphique du portrait parl, ; in the Archivet d'Antkro*
pologie Criminelle, 1907.

218 MODERN THEORIES OF CRIMINALITY [§ 51

mouth = 0,4; etc. Each characteristic of the forehead is

marked by the addition of a figure to 0,1. For instance:
/

0,121 forehead in profile very receding,

0,122
0,123
0,124
0,125
0,126
0,127

receding,

slightly receding,
' intermediate,

slightly vertical,
1 vertical,
' projecting.

By means of this numerical system, the use of the word
portrait could become international. Two police offices
could, without needing to know the language of each other's
country, send and read the full description of an individual.
Moreover, it has the advantage of translating by means of a
few figures a long description which would cause great tele-
graphic expense. Lately, Icard has simplified and perfected
the system.1

Section 51. (D) The Biographical Ledger and the Album of the
Investigation of Criminals.

For the discovery of notorious delinquents (exiles, fugitives
from justice, rebels), Alphonse Bertillon has by combining
the anthropometric card with the word portrait invented the
so-called Album D K V, in order to condense the main trait
(Deq. stands for the lobule of the ear with sloping outlines;
Car. for the concave or rectilinear antitragus in profile; Vex.
for the lower convex fold) which serves in itself for the identifi-
cation of the suspect.

Ottolenghi has likewise devised a biographical ledger with
a complete physical and organic description of criminals.2

1 Archives d' Anthropologie CrimineUe, 1900.

8 La nttova cartel I a biografica dei pregiudicati adottata nell' Ammini-
ttrazione di Pubblica Sicurezza ; in the Scuola Positiva, 1905.

§ 51] MODERN THEORIES OF CRIMINAL!'!

The following is table V of the ledger, the mo«t interesting
of all:

Psychical characteristics and biographical information,
(for dangerous subjects)

(The officer will underline the quality of the characteristic,
or fill out the space as he makes his observations and verifica-
tions).

I. Psychical Characteristics.

Intelligence and its manifestations: deficient, ordinary, high ; —
cunning, sincerity; — excited, depressed, unbalanced, raving.

Manual occupations: skilful, ordinary, clumsy.

Reading: whether he reads or not; the books he prefers
. . . ; what periodicals. . . .

Writing: handwriting: childish, ordinary, careful; — con-
ventional letters, peculiar signs, secret writing; — aptitu< li-
fer writing: little, ordinary, developed.

Culture: deficient, ordinary, fair, high; — languages he
knows . . .; — publications. . . .

Speech : talkative, laconic, silent; — careful, vulgar, ob-
scene; — whether he knows slang or not.

Carriage: ordinary, vain, dejected, timid.

Facial expression: intelligent, indifferent, stupid; — good,
indifferent, ferocious; — attentive, indifferent, distracted; —
gay, indifferent, sad, changeable; — calm, indifferent, restless,
frightened; — open, indifferent, suspicious, false; — insolent,
indifferent, timid.

Temperament: calm, restless, emotional, not emotional; —
uniform, changeable, apathetic, excitable, violent; — balanmi,
unbalanced, maniacal.

Character: weak, easily influenced, strong, obstina'
constant, inconstant; — mild, brusque; — merry, indifferent*
sad ; — selfish, altruistic ; — expansive, reserved ; — t

220 MODERN THEORIES OF CRIMINALITY [§ 51

proud, insolent; — sociable, misanthropic; — sincere, hypo-
critical* simulative; — scrupulous, honest, dishonest.

Behavior in the family: with parents; with wife; does he
live with her or not; — does he treat her well or not; — does
he support or. exploit her; — does he live with another woman or
not; — with the children: does he look after them or not,
does he abandon them; does he treat them well or not; does
he support or exploit them.

Industry: works assiduously, little; does not work; un-
employed, changes occupation; does he take part in strikes
actively or passively; the opinion his employers have of
him. ...

Attitude in business: enterprising, adventurous, without
initiative; honest, not very scrupulous, rascal.

Sexuality: accentuated, ordinary, abnormal. . . .

Religiosity: believer, unbeliever; does he practice his
religious exercises or not; pious.

Dissipation, prodigality: yes or no.

Inclination to vagrancy: yes or no.

Vices: drunkard, gambler, fond of women, debauchee.

Litigation: is he inclined to contest in law or not.

Impulsiveness, brutality: yes or no.

Attitude towards authorities: obsequious, arrogant, scornful,
rebellious, mistrustful.

Relation with suspects (malefactors, prostitutes, etc.): yes
or no.

Predominant criminal aptitude. . . .

Danger ousness. . . .

Signs of regeneration. . . .

II. Biography.

Family: parents, brothers and sisters, wife, children (condi-
tion of life, economic condition, morality, mental state of each).

§ 52] MODERN THEORIES OF CRIMINALITY

Childhood and youth: behavior in the family.
Behavior at school and in charitaMe institutions.
Behavior in the house of correction.

Aptitude shown for study, work, vagrancy, pauperism, de-
linquency.

Studies, titles, vicissitudes in work and in business and family
matters.

Military life: behavior, rank, offenses.

Civil life: mode of life, employments, reputation.

Men acquaintances.

Women acquaintances.

Change of domicile.

Vicissitudes abroad: occupation, journeys, acquaintances,
expulsion.

Vicissitudes in jail and during the period of vigilance: in-
subordination, rebellion, simulation, attempt to commit
suicide, etc.

Important events in which he took part.

Physical infirmities.

Mental infirmities: epileptic fits, hysterical fits, paranoias,
excitement, depression, suicidal attempts.

The human document is registered as a whole.

Section 52. (2) THE REVELATION OF THE TRACES OF

CRIME.

Empirical investigation rested on the general dualism of
crimes that left traces and those that did not. "Scientific
investigation," says Niceforo,1 "must always start with the
supposition that all murderers and thieve leavo some traces
at the scene of the crime. These traces are often visible*

1 Guia para el estudio y la enseflanza de la Criminologia, third part,
Madrid, 1904.

222 MODERN THEORIES OF CRIMINALITY [§ 52

although at times they are not. Therefore, every effort must
be directed to discover on the carpet, on the glass, on the
floor, on the victim's neck, on the shining metal of the
bell, on the steel of the strong-box, the traces which the
criminal undoubtedly leaves behind. In these investigations
the microscope comes to the aid of chemistry and
photography."

In our days, the main effort in the investigation of traces is
directed to the discovery of dactylograms which the delinquent
almost inevitably leaves behind. The value of this examina-
tion is seen in the case of the murderer Schoeffer, who was
arrested and convicted because of a blood-stained dactylogram
left on a window pane and which was identified by the tena-
cious Bertillon. Robbers have been identified by means of
dactylograms in relief left on the fallen wax of a candle;
another malefactor was detected through the revelation of a
print left on paper by his fingers moistened in ferrocyanide
of potassium . . . and which became visible by the applica-
tion of acidified perchloride of iron. Thus, among the direc-
tions Reiss gives the Swiss police and to be found in all police
posts, there is one that reads: "... the officer will not
touch any object with a smooth surface found at the scene
of the crime, especially broken glass and its fragments. Win-
dow panes exposed to the rain will be covered with wax-
cloth. . . ."

The prints once visible, direct photography or the mold in
case of prints in relief will be found sufficient.

At other times, more elementary devices can bring them to
light. The print can be superposed on black material and a
strong light thrown against it; or, if the print is on glass, the
tarnish of the breath will suffice.

There are cases when we must have recourse to more delicate
methods. For instance, in the case of prints on glass, Stockis'

§52] MODERN THEORIES OF CRIMINALITY 223

" Investigations and Identification of Finger Prints " l enu-
merates the following:

a. The application of an 8 per cent, solution of nitrate of
silver, exposure to the light, and revelation by means of a
photographic revealer.

b. The application of a coating of ink.

c. Coloring by means of osmic acid.

d. The use of iodine vapors.

e. The use of hydrofluoric acid, which attacks the glass
between the papillary lines.

f . Coloring by means of eosin, etc.

g. The application of an alcoholic solution of Sudan red
III, etc.

In all these experiments the usefulness of the photograph
is evident.

As Niceforo says,2 " every print which does not of itself
present to the eye differences of tone on account of the
imperfection of the optical organ can be brought to
on the photographic plate. A blood-stained handkerchief
washed several times appears perfectly white to th<
but, if a photograph of it is taken, black stain-
be detected. The almost invisible traces of a pencil on a
page placed under the paper on which the writing was
made will also appear on the photographic plat*
burned letter, properly prepared and laid out by the
aid of varnish, prints its writing on the photographic
plate."

This is not all; every invisible print leaving a Hi!!;'
pression on the photographic plate can bo str<
chemical means, that is, by employing the so-called ortho-
chromatic plates, or microphotographic preparations.

1 Les recherches et V identification dcs cmprcintcs digitate*.

2 Guia para el estudio y la ensefianza de la Criminologia.

224 MODERN THEORIES OF CRIMINALITY [§ 53

Bertillon's " Judicial Photography," 1 Reiss* book of the same
title, Paul's "Manual of Criminal Photography,"2 etc.,
which, on account of their technicality, cannot be reviewed
here, have discussed this subject. It suffices to know that
the human eye can acquire surprising power by the aid of
these wonderful improvements.

Section 53. (3) INSPECTION OF THE PLACE, OF THE
EFFECTS, AND OF THE VICTIM OF THE CRIME.

At this point a new application can be made of judicial
photography.

Criminal investigation, if it is to bear results, requires that
the place of crime be indefinitely kept as it was found at the
time of the discovery. This necessity cannot be completely
met by a written description, the drawing of a plan, or even
by ordinary photography.

Alphonse Bertillon has thought of a better device, namely,
metrical photography, by means of which and without the
need of trigonometrical calculations, we can obtain likenesses
whose various elements of height and distance are susceptible
of an easy and immediate measurement on the positive itself
placed between two lateral scales.

14 This method," says Niceforo,3 " can be of great service.
A witness declares to have seen the scene from a definite
point. The metrical photograph or its reproduction on a
geometrical plan will show whether it is materially possible
for him to have seen it. Can the height of a window allow
an entrance without any aid? Is the size of an aperture
sufficiently large to let a man through? etc."

Partial photographs and the enlarging of sections and

1 La Photographie judiciaire, Paris, 1890.

2 Handbuch der Kriminalistischen Photographic, Berlin, 1900.

1 La Police et VEnquHe judiciaire scientifique, chapter I, Paris, 1907.

§64] MODERN THEORIES OF CRIMINALITY

details of the place of crime or of the corpus delicti are equally
useful.

In the photography for the identification of corpses, *n*U»pdi
(the corpse toilette) are used which tend to render the face
almost as if alive (friction of the skin with talc, washing with
a solution of chloride of lime, injection of glycerine in the
eye-ball or washing of the eyes with aluminum sulphate, rouge
on the lips, etc.).

Niceforo's " The Police and the scientific Investigation of
Crime " 1 contains some fine reproductions of photographic
negatives obtained from the Police Bureaus of Paris, Berlin,
Dresden, and Lausanne.

Section 54. (4) THE VALUE OF TESTIMONIAL EVIDENCE.

Criminal justice is based on testimonial evidence as well
as on the revelations obtained from the traces of the crime.
How much weight should be put on testimonial evidence?

Apart from wilful false testimony, our contemporaries
realize how much this kind of evidence is to be mistrusted.

In 1904, Liszt arranged a mock murderous attempt in his
class in criminal law before 60 students who were not aware
of the fact. After an address given by Tarde, Liszt asked if
any one in the audience wished to speak before the lecturer
summed up his conclusions. One of the students spoke in
favor of Tarde's argument from the point of view of Christian
morality. Another qualified the argument as shameful.
Insults and threats were exchanged until one of them pulling
out a revolver attempted to shoot the other. Then Liszt
asked the students to testify. Scarcely ten out of sixty gave
a faithful account of what had happened, while the others
made more or less grave errors, especially in reference to
details.

1 La Police et I'EnquSte judiciaire acientifiquc, chapter I, Paris, 1907.

226 MODERN THEORIES OF CRIMINALITY [§ 54

Gross also related in his " Criminal Psychology " that being
present at an execution during which the hangman wore
gloves, he asked afterwards four persons present of what color
the gloves were. One said that they were white, another
that they were black, a third that they were gray, and the
fourth maintained that he wore no gloves.

Claparede's experiments are also worth remembering.
Once, during a lesson, he distributed among his pupils a list
of questions concerning certain peculiarities of the University
building. The questions were: " Is there an inner window
in the University cloister opposite the window of the janitor's
lodge? " " How many columns are there in the vestibule of
the University? " " How many busts? " etc.

Out of 54 answers, none was altogether exact. The existence
of the window before which the students passed every day
was denied by 44 witnesses.

Another day, a masked man entered the hall gesticulating
and uttering incoherent words. The professor asked him to
leave, and on his refusal he had him put out by force. The
scene took place the day after the Geneva celebration of the
so-called " Scalade." The students thought that on that
account some one had made a wager, and therefore they
did not suspect that the scene had been arranged beforehand.
After the expulsion of the intruder, Claparede continued his
lecture as if nothing had happened. Only a week later he
alluded to the event and asked the students to answer the
following questions: " Did the man wear a hat? " " What
kind of hat? " " What was the color of his hair? " " Did he
wear gloves? " etc., etc.

After giving the answers, the witnesses were asked to
recognize the mask from among nine others.

Not only were they unable to recognize it, but every one
gave a different description of the masked man.

§55] MODERN THEORIES OF CRIMINALITY 227

Nothing is more difficult than truth.

As Lombroso says,1 " we only need to consider how our
senses perceive a thing and how we come to represent it to
ourselves, to become convinced that we rarely perceive all
the details that accompany it."

The anomalies found in the constitution and operation of
the senses, as numerous as they are complex, their so-called
illusions, the mechanism of attention, the suggestions and
auto-suggestions, the process of memory (amnesic, param-
nesic, and hypermnesic), modify the value of testimonial
evidence and often annul it altogether. A whole review!
founded by Stern2 in 1902, analyzes this class of problems
which would require long psychological diversions to
explain.

In conclusion, we only need to point out that the question
of testimonial evidence is in some respects solved differently
than it was done by old practitioners. For instance, the rule
" testis unus testis mdlus " loses its value if it is believed that
a single witness can give a faithful testimony. Also, tin
ness who doubts, wavers, and testifies with partial or pro-
gressive amnesias, is nearly always more trustworthy than the
one who affirms or denies flatly and unconcernedly, elaborating
his deposition with details and minutise.

In any case, the testimony of children and feeble-minded
needs a very careful examination.

(5) MODERN INVESTIGATION OF CRIME IN SPAIN
AND IN SPANISH AMERICA.

Section 55. (A) Spain.

In Spain, modern investigation of crime has not gone beyond
the methods of identification.

1 La psicologia dei testimoni nei processi penali; in the
1905.

2 Beitriige zur Psychologic dcr Aussage.

228 MODERN THEORIES OF CRIMINALITY [§ 55

The first allusion to Bertillon's anthropometric system,
lamenting that it could not be immediately adopted, is found
in the declaration of motives contained in the Royal decree
of June 24, 1890, which sets forth that, in the future, papers
sent in by the judicial authorities to the Central Registration
Bureau should contain data for identification. These data
were limited to height, weight, size of hands and feet, color
of the iris, color of the beard and hair, color of the face, and
scars.

No scientific criterion had determined the selection of the
characteristics to be noted, which, as in the case of weight,
suffer constant oscillations.

Six years later, a Royal decree of September 10, 1896,
established the service of anthropometric identification
according to the Bertillon system. The Bureau of the Madrid
Cellular Prison was to act as a Central Bureau under the
Department of Justice. The late Dr. Simancas organized
the Bureau and was its first Director.

The service of identification was organized on February
18, 1901, by uniting the Central Bureau of Anthropometry
with the Bureau of Registration for convicts and rebels,
which had been established in 1878. Dr. O16riz was charged
with the direction of the service.

Under this new administration, the service has developed
to such an extent as to adopt dactyloscopy.

Oloriz has devised a dactyloscopic system, which can be
summed up as follows:

1. The main types were reduced to only two: circle and
angle;

2. Their disposition in the five fingers of each hand capable
of 32 combinations were classified by a logical key, as in the
words of a dictionary, consisting of the numbers 1 to 82;

3. The individual dactylographic formula was expressed

§56] MODERN THEORIES OF CRIMINALITY

by a fraction whose numerator represented the combination
of the fingers of the right hand and the denominator those of
the fingers of the left;

4. But, since two of the dactylographic formula' — namely:
" angles in the ten fingers " and " circles in the ten fingers "
— are so frequent, especially the first, as to include ten per
cent, of the cases, he introduced at this point anthropometry
for the measurements of the two diameters of the head; not
for the sake of subdividing, but in order to arrange the dac-
tylograms obtained in a continuous series, thus facilitating
the task of identification.

Later, O16riz abandoned his system and accepted with a
slight modification that of Vucetich.

Section 56. (B) Spanish America.

As we have seen, the great South American contribution
is the simplification and perfecting of dactyloscopy crowned
by Vucetich's method.

The 3rd Scientific Latin-American Congress (Rio Janeiro,
1905) approved Vucetich's conclusions with no other opposi-
tion than a defense of the Bertillon system by Dr. (Jiri
of Uruguay. The Congress declared that :

" The system to be adopted was the South-American dai
oscopy as advocated by Lacassagne, Locard, and Y vert of
the Lyons University, because:

" a. It is simple, rapid, and safe, and makes it possible to
find the individual dactyloscope in the file with promptitude
and certainty. The subdivision by families corresponding to
the four main types : Arch = A = 1 , Internal loop =1=4,
External loop = E = 3, and Vertical = V = 4, allows an in-
finite extension of the analytic division, and has the advant-
age of being less expensive, affording more facility of diffusion
and more respect for the prerogatives of human personal

230 MODERN THEORIES OF CRIMINALITY [§ 50

" b. With the dactyloscopic system, certainty does not
depend absolutely on the operator; any impression, no matter
how often repeated, gives always the same result. No two
fingers have the identical papillary design; the impression
of a single finger is sufficient for the mathematical identifica-
tion of any person;

" c. The digital design never changes from the last months
of womb life to the decomposition of the body. Dactyloscopy
alone permits an exact identification of minors and corpses.
The possible accidents that may occur in the course of a man's
life only emphasize the individuality of the impression. The
restitutio ad integrum of the papillary designs in case of exterior
burns or other slight injuries is a fact demonstrated by science;

" d. The bloody digito-palmar and plantar impressions,
like the revealed invisible ones, can determine and facilitate
the discovery of the criminal;

" e. It would be very advantageous to replace all the old
systems by the application of the simple digital impression
which can be used to advantage in deeds connected with
civil, commercial, and military life, reserving morphological
filiation, peculiar marks, and visible scars for the capture of
criminals in public thoroughfares. The importance of photog-
raphy in the matter of identification is relative; it is neces-
sary to restrict its application to persons convicted of crimes
against property and of serious offenses against the person;

" f. Anthropometry hi itself does not identify; in order to
reach a probable identification, it needs morphological filiation,
photography, peculiar marks, scars, and tattooings, obliging
the delinquent to strip down to his waist. But, in the dactylo-
scopic individualization, personal identity is determined in a
way that all the police in the world can read, wlialover be
the classification adopted. Thus, the dactyloscopic system
becomes a true universal language"

§ 57] MODERN THEORIES OF CRIMINALITY 231

In the same year, the Soiith-Amrrh an Inter-polioeCoiigWii
declared itself in favor of Vucetich's method, thus beginning
the internationalization of the >y.stcm.

III. THE CRIMINAL'S REPLT.
Section 57.

This intelligent attack is met by an equally intelligent
defense on the part of the criminal world.

The novel reflects the struggle. Sherlock Holmes, that
clever detective, finds a worthy rival in Hornung's Raffles or
in Leblanc's Arsene Lupin. Meade and Eustace's "The
Brotherhood of the Seven Kings," and Goron's " The Flower
of the Penitentiary " recount the wonderful deeds of scientific
criminals — Madame de Koluchy, the Baron de Sainte
Magloire, etc. — who kill with different methods. They
subject the unsuspecting victims to the action of the X rays
of a fragment of radium; they get rid of compromising articles,
like a goblet zealously watched and which by playing music
containing the specific note of vibration the resonance will
break it into pieces; criminals in short who realize thei
instincts by methods that would arouse the enthusiasm of the
Society fancied by Thomas de Quincey which considered
murder a Fine Art.1

1 It is only a humorous outburst, and in no way — aa son
suppose — a result of disappointed desires. No; the mind that created
" Levana "and passages possessing such profound beauties of style haa a
deep hatred for crime. In the history of literature, t here cannot be found
a more touching description of crime than the one of Williams' murder*.
One feels the real presence of the criminal behind him. us in Poe't
description of the man in the crowd we see him walking before us.
The powerful description, altogether <'pir and fired with indignation
against the assassin, form< striking contrast with the cold

ironies of the Memoirs of the Club of hon : >erta. We take pleas-

ure in writing these lines in defense of the illustrious writer, who livsd
Gorki's beautiful story," Once, in autumn .
latter wrote it. De Quincey also was debtor for bread, warmth, and lore

232 MODERN THEORIES OF CRIMINALITY [§ 58

This is only fiction; but, the reality is not far distant, as
can be seen in Lombroso's " Old and Modern Crimes." l

Thus, as Ottolenghi 2 pointed out, if the Bertillon system led
professional criminals to abandon tattooing, dactyloscopy
makes them commit crime with gloves on in order to avoid
the betraying dactylogram. Reiss 3 says that until now he
only knows of one case of theft committed with gloves on,
and that he hopes — since " a cat does not hunt with gloves
on " — the fashion will not spread. He recalls Vidocq's
anecdote, who, in order to put an end to the rumor that his
agents stole from time to time, made them wear gloves when
on duty.

Will the skill of the thief be ever overcome?

CONCLUSION

Section 58.

All that has been said in these pages concerning modem
theories of criminality is only the shadow of a reality, impos-
sible to express like all realities — an abstract remark, which,
in spite of its reality, has not been made in order to absolve
the author from the defects and errors with which he has
expressed it. Although the book could end here, it seems
fit to cast a glance over the whole for the purpose of forming
an idea of the present situation and of the probable future
toward which we are bound.

— not once, but many times — to an innocent prostitute, poor Ann,
whom he also sought afterwards in vain — unless it be in the poisonous
dreams of the opium, — and for whom he wrote words, which, would to
God, had been efficacious.

1 Delitti vecchi e delitti nuovi, Turin, 1902.

* Applicazioni pratiche degli studi su 265 processi criminali; in the
Archivio di Psichiatria, vol. XVIII.

* Osaervazwni sidle impronte digitoli e sulla dattiloscopia ; in the #i-
vi*ta di Polizia giudiziaria scientijica, May, 1907.

§ 59] MODERN THEORIES OF CRIMINALITY

I. THE MOVEMENT.

Section 59.

To the number of, properly speaking, criminological theories
treated here — that is to say, theories which arise from and
end in the pure conception of crime and punishment _ we
must add the various tendencies which modern communities
are developing, intending them not for a universal rebirth
which is in store only for our century, although all have hoped
for it, but simply for the constant renovation of their stru
and life in the calm continuity of History. After all, criminal
law is a part of History, and, therefore, the whole social
question and the various social tendencies, — in part or en-
tirely — socialism, anarchy, feminism, internationalism, etc.,
are related to it entirely or incidentally. Nevertheless, we
must isolate, as much as possible, what we may call the legal
question from all the rest, although a blending of the former
with the latter must have been noticed here and there in
these pages, even if we have only pointed it out in a few
concrete instances.

The question of the delinquent stands out preeminently
and offers a clue for the others.

Criminal Anthropology, appearing twenty years ago in
various places and almost at the same time — the works of
Lombroso, Benedikt, and Maudsley appeared simultaneously
in Italy, Austria, and England — like a ripe fruit which i*
bound to fall at a certain moment, offers numerous theories
on the nature of the criminal. Those who in the name of
criticism are intoxicated with these theories, take advantage
of their variety in order to overwork the science, fmgeUing that,
when examined from their positive side, they show many con-
tradictions — not very serious after all. However, these the-

234 MODERN THEORIES OF CRIMINALITY [§ 59

ories and contradictions present in a unanimous and com-
pact way the problem of the male offender, although when
examined and explained their bonds loosen, disclosing signs of
disintegration.

It can be safely stated that the movement started with
Lombroso, whose name, like that of his predecessors, Roder
and Beccaria, will form a landmark in History. His work,
like that of the last two, does not consist in a mere collection
of pages, but rather in a fruitful trend of thought which it
has stimulated in the whole civilized world; thought which
after 35 years of activity shows no signs of decline.

His book has been thought by some almost as a revelation,
by others as the most baneful the Code has ever known, and
by others, more kindly inclined, as an attempt to solve certain
questions already known and discussed by a small professional
circle, affirming the existence of a man fatally destined to
crime by nature, absolutely incorrigible and ostensibly re-
vealed in a monstrous type, with its list of unheard-of theories,
like atavism, epilepsy, infantilism, etc. Yet, the work has
stirred minds in a manner most brusque, arousing indignation
in some, admiration in others, and in all an interest in the
pursuit of the problem. In spite of errors and hasty con-
clusions, the book contains pages of real value, which will
survive and be recorded in the future digest of science. Its
greatest merit, however, will consist in having influenced
thousands of men to unite in the study of a subject of supreme
importance.

Whether delinquency is inherited or acquired; whatever
may be the factors that determine it; whether it manifests
itself in an organic or professional type, the fact remains that
the consciousness of the problem's existence has become so
general that, if some one should say that such a man is the
same as other men, he must surely have a more complicated

§ 59] MODERN THEORIES OF CRIMINA 235

conception of human nature than that represented by «'"pli>

free-will.

One of the greatest factors in the revision of modern criminal
law is found in the studies on the nature of the delinquent,
gathered and encouraged by Criminal Anthropology.

Although not the only factor, it is the most evident and
the one brought to the attention of all.

A second movement, destined to revise our conception of
penology, is found in the old penitentiary science. In order
to gain an idea of this process it is necessary to go back to
Beccaria.

The Milanese writer, after having reduced the ev
punishment to a minimum sufficient to make it lawful, -
according to his formula, — only questioned the lawfulness
of the death penalty, without suspecting — as it was seen
later — that to question the utmost application of a principle
is to question the principle itself. The sentiments of his
epoch were satisfied with his humanitarian reforms; but a
later epoch found them insufficient for its sentiments, which
were more delicate and numerous on account of an in-
exhaustible natural selection. The minimum of a previous
epoch was not considered such in a later one. The decadence
of punishment reaches such a stage that, at an imperceptible
moment in history, the terms of the penal problem are
changed; the quantitative reform of punish run it becomes
an essential or qualitative one.

At this stage, the old question that concerned only the
death penalty pervades all penalties, and the al>olitionist of
the former joins hands with the abolitionist of penal servitude
as a whole. From Beccaria to Roder and from t!i«
Vargha, Dorado, Poletti, and Solovieff, covering a period
of a century, this process has pme on and still continues,
being completed, from its positive side, by the

236 MODERN THEORIES OF CRIMINALITY [§ 60

of that penal substitute which is destined to better fulfill its
function in civilized countries, namely, the system of tutelage
which is being organized in penitentiary science.

Rarely do both factors overlap and mingle in modern
theories and writers. Most of the latter adopt the one or
the other, according to their source, and develop one-sided
and incomplete systems. Criminal Anthropology, for in-
stance, separated from the ethical reform movement on the
significance of punishment, makes some writers fall back
upon the significance of a crude or indifferent defense; while
this second movement, without the teachings of the former,
degenerates into a barren sentimentalism.

The present movement contains factors which — to a
certain extent — do not participate in any of these two main
influences; others which accept in various degrees only one;
and still others which combine the two in various ways.

II. THE PRESENT STATUS.
Section 60.

It has been said that this is a transitional and critical period.
The transition and the crisis are so serious and evident that it
is only because of their extreme quantitative features that the
above statement can be accepted; for, all periods are transi-
tory and critical, since human thought never stops in
order to leap immediately into another state.

Signs of this extreme critical condition are everywhere
visible.

Higher institutions, born of a profoundly educative and
moral understanding of punishment, thrive within the same
system which preserves the death penalty and which permits

J 61] MODERN THEORIES OF CRIMINALITY 237

a regression to refined corporal punishments, like the electric
and gradual torture planned in England, and the restoration
of the whipping-post in Delaware.

The same feature characterizes all other questions of modern
science. To speak of them now would be to rewrite the whole
book, which, for better or for worse, must have left, perhaps,
the impression of constant contrasts and anxieties. With
the poet, we would describe modern science as being half
beautiful, half ugly, and monstrous in the ensemble.

III. THE SOLUTION OF THE FUTURE.
Section 61.

How will the crises be solved?

Without trying to prophesy or to conjecture, it can be
affirmed on the mere observation of facts and their significance
that humanity is directed toward penal tutelage, not by the
straight and easy path of progress as it is generally conceived,
but with a complication of movements in all its steps, very
difficult to describe.

Once entered upon this course, as we have often pointed
out, what can change its direction unless it be an aberration
or an episodical incident not connected with its previous
march?

It is often stated that humanity must be cured of a senti-
mental aberration. But, first of all, sentiment enters neces-
sarily in everything; for, nothing can be done with it alone
or without any of it. There is needed both head and heart,
the whole soul of which they form a part. Moreover, if by
sentimentalism is meant a morbid degeneration of certain
virtues, it must be said that it is exactly these virtues in their
healthy condition that penal tutelage is acquiring by a
positive knowledge of the delinquent.

This tutelage, on account of its love, will not cause any

238 MODERN THEORIES OF CRIMINALITY [§ 61

tears to be shed; yet, it will not play the part of the weak
father who becomes an accomplice in the corruption of his
children. Taking the place of the results hoped for in vain
from punishment, it will realize them in a better way on
account of its better nature.

On the other hand, we believe we have demonstrated that
tutelage is not an incidental episode, but that it is closely
connected with previous phases, although difficult to perceive,
at a given moment, the change that has taken place. Penal
tutelage is the uninterrupted continuation of punishment,
having the same biological basis, namely, the reaction against
crime. But modern communities cannot react as the old.
The greater delicacy of their sentiments attenuates the
response to the provocation and makes it pursue different
courses; for, " as the lion," says Poletti, " gives all his move-
ments a character of savage ferocity, so man gradually marks
all his actions with the stamp of humanity."

* *

Having attained this new conception, criminal law acquires
the harmonious simplicity of truly superior institutions.

The intricate problem of responsibility, which disturbs
scholars, disappears. Since the main object of the problem
is to distinguish the responsible from the irresponsible in order
to punish the one and acquit the other, the day when punish-
ment disappears, shall we not be able to say that no one is
responsible or that all are?

Both solutions, although expressed in different words, are
identical at bottom. The notion of responsibility* which
is eliminated in the first, returns and assumes infinite pro-
portions in the second by including the heretofore irresponsible,
the insane and weak-minded, the minors and the imprudent,

§ 61] MODERN THEORIES OF CRIMINALITY 239

the impulsive in the defense of their person, and the many
dangerous subjects whose acquittal as well as their return to
upright society constitutes the greatest immorality of modern
systems. With a less formal and more ethical conception of
crime it would be extended to new and numerous actions and
omissions.

When the claims of responsibility make way for the claim
of the necessity of public tutelage, there will be an end to the
disputes between the advocates of free-will and those of deter-
minism; for, whether crime is due to the most ungovernable
freedom of choice, or to the more fatal pressure of invincible
agencies, such necessity remains and is not changed by the
intervention of foreign elements.

On the other hand, when from corrective punishment we
pass to penal tutelage, is not another cause for contradictions
also removed? If the corrective school has been obliged to
modify its position, if not in regard to born criminals at least
in regard to incorrigible criminals, penal tutelage, on the con-
trary, like medical science, keeps its incurables, or to use its
own phrase, its perpetual wards.

* *

In conclusion, what will the future do with the delinquent,
judging by present indications?

Perhaps nothing. It may be that abstention will form a part
of the penal system. The verdicts of not guilty rendered by
juries, legal pardons, and conditional sentences predict that.
If penal tutelage should prove injurious or useless, tli«
no necessity for its maintenance. At times, crime produces
in certain natures the same effect as punishment, and serves
as its own most powerful antidote through the agency of the
conscience afflicted by that natural punishment, the first

240 MODERN THEORIES OF CRIMINALITY [§ 61

manifestation of all punishments, which Plato describes as
the instantaneous and irremediable assimilation with the
morally fallen through noble remorse for the deed, the em-
pirical and automatic corrections, and the combined inhibitions
of the moral nature of man.

Passing from abstention to intervention, it is safe to say that
all forms that cause human dignity to suffer or submit it to
shame and insult will be abolished. These having been
eliminated, penal tutelage, through indefinite, indeterminate,
or, at any event, conditional sentence, will take charge of
delinquents and give to each what he needs by means of the
consequent individualization. This kind of modern dosimetry
which offers the same remedy for every crime and for every
delinquent, varying only in quantity, will be replaced by
methods difficult to foretell, because on this ground we find
ourselves in the most elementary and incomplete empiricism.
To declare, for instance, that the cellular system, or the system
of classification, or any other, is the only penitentiary system,
and discuss therefore their advantages and disadvantages,
as some do in our days, is to defend an untenable position.
If, for instance, in speaking against isolation, we use Dostoyew-
sky's terrible phrase that " it deprives the criminal of all
strength and energy, enervates his. soul by weakening and
frightening it, and, finally, presents a desiccated half insane
mummy as a model of repentance and correction," how can
we help remembering that the worst torture suffered by the
gifted writer himself during his period of imprisonment was
that forced companionship, which does not allow a single
moment of solitude? All this, then, must form the store of
instruments to be used by the new tutelage, and their use and
application must vary according to the individual and the
given time, not otherwise than is done in a medical examina-
tion. Hence, modern criminal law seems to be always de-

§ 62] MODERN THEORIES OF CRIMINALITY 241

pendent on the study of anthropological sciences, and the
first reform to carry out is the diffusion of their teachings
among all those who come in contact and have to deal with
delinquents.

. « *

These are indeed the new horizons of criminal law, no matter
how paradoxical a criminal law without penalties may appear
to some. What it has gained is so superior that it seems to
have reached the non plus ultra; since all its work consists
in extricating itself from the mire in which it shamefully
finds itself at present.

It is the duty of every one to proclaim these new horizons
and to serve them to the best of his ability.

POSTSCRIPT TO THE CHAPTER ON THE SCIEN-
TIFIC INVESTIGATION OF CRIME.

Section 62.
How to procure the Confession of the Accused.

The ancients employed torture in order to procure the con-
fession of crime from the accused. Can we procure it by
kinder and more humanitarian methods?

Munsterberg l thinks to have succeeded, and defends the
advantages and results of a method based on the principle of
the association of ideas, as employed in psychological labora-
tories. The method consists in: (a) including in the series
of topics one or more which recall the crime; and (b) in
measuring the rapidity of the spoken associations by means
of an electric device placed between the lips of the suspect.
The instrument, by the least movement of speaking breaks
an electric current passing through an electric clock, and
causes its hand to move around a dial ten times in a second,
like chronoscopes which measure the time of reaction.

The delay in answering the revealing associations would
constitute a proof of guilt and a kind of implicit confession.

Suppose a case of murder. The suspect must orally and in-
stantaneously express the association of ideas involved in the
terms: moon, house, palm, blood, rose, ship, struggle, weapon,
etc., etc. The murderer would give an immediate answer to
the indifferent subjects; but he would feel obliged to stop and
hesitate before answering the compromising ones.
McClure's Magazine, 1907.

MODERN THEORIES OF CRIMINALITY

It seems to us that this substitute for torture would lead
to the same errors that accompanied the barbarous practice.
It is well known, in fact, that at tiin.-> torture was unable to
draw a confession on account of that invulnerability possessed
by the malefactors mentioned by Lombroso, or on account
of their presence of mind; while, at other times, it caused'
innocent persons, overcome by pain, to declare themselves
guilty. Thus, the born criminal, the cold-blooded assassin
of Lauvergne may succeed in not compromising himself by
answering to the revealing topics; while the innocent man,
troubled by the weight of evidence, will often be disturbed
and appear self -convicted.

The same can be said of the graphic method of the respira-
tory and circulatory movements.1

1 For further references on this subject, cf . the bibliography collected
by Professor Wigmore in his article on " Professor Mttnsterberg and the
Psychology of Testimony " (Illinois Law Review, 1909, vol. III. ;
and Dr. Guy M. Whipple's paper in the American Psychological Bulletin
for 1909. [Note of the T.]

INDEX

A. Circumstances, mitigating, 153.
Adaptation, 61 . aggravat

Adults, treatment of, 152, 153. Claparede, 226.

Alcohol, 57, 112,1 18, 1<»7, 198. Colajann., •!:*, 57, 66, 67, 7.

Alcoholism, 73, 77, 81, 197, 198, 199. 74, 77, 78, 87,

Aleman, 65. Congresses, 37, 58.

Anarchy, 52. Amsterdam, 79, 80.

Anatomy, 11), 25, 81. Brussels, 79, 80.

Angiolella, 39. Geneva, 79, 80.

Anomaly, intellectual, 55. Paris, 79.

moral, 49, 55. Rome, 79.

psychic, 47. Tun

volitional, 55. Court, juvenile, 150, 151, 152, 160,

Anthropology, 36, 39, 43. 1 G 1 .

criminal, 4, 11, 17, 23, 28, 33, 38, Crime against chastity, 5, 70, 73;

55, 56, 67, 71, 75, 79, 80, 81, honor, 104; person, 7-v

209. property, 70, 77, 78, 10*, 107.

Anthropometry, 115, 211, 212, 230. emotional, 25.

Antonini, 2, 39. epileptic, 26.

Arenal, 203, 204. natural, 28, 29, 30.

Argentina, 120, 121. political, 66.

Assassins, 3, 18. positive, 30.

Atavism, 13, 15, 17, 29, 36, 41, 42, Crime of blood, 70, 78, 105.

43, 44, 52, 75. Criminal, born, 15, 17, 22, 23, 31,

Aubert, 63. 36, 40, 43, 54, 67, 68, 69.

Aubry, 58, 59, 60. emotional, 23, 24, 25, 68, 69.

epileptic, !.">.

B. habitual, 21, 22, 26, 54, 66, 68,
Bcccaria, 11, 26, 124, 125, 128. 69, 133.

Beggar, 108, 109, 110. insane, 68, 69.

Benedikt, 42, 62, 63. lunatic, 22. 23, 24.

Bertillon, 211, 213, 217, 218, 222, mob.

224, 228. occasional, 21, 22, 23, 26, 54, 64,
Bonfigli, 49.

Bordier, 41. political, 25.

Bortolotto, 154. tyj>.

violent, 31.

C. Criminality, spread of. 101.
Cams, 3. juvenile, 107.

Casper, 4. Cynics,

INDEX

D.

Dactyloscopy, 213, 214, 216, 230.
Dallemagne, 6, 45, 47, 48.
Darwin, 29, 33, 67, 71.
Defense, legal, 62.

social, 62.
Degeneration, 6, 7, 16, 23, 45, 46,

48, 56, 61, 62, 73, 83, 108.
Delinquency, female, 113, 114.

juvenile, 81, 98, 156.

male, 114.

senile, 81.

treatment of, 149.
Deportation, 169, 170.
Despine, 7, 29, 49.
Dorado, 65, 67, 70, 100, 102, 130,

136, 137, 174, 187, 202.
Drunkenness, 57.
Dubuisson, 58, 59.

E.

Education, 77, 78.
Ellero, 125.
Ellis, 41.

Environment, 51, 63, 68, 74.
Environment, physical, 47, 106.
social, 23, 24, 42, 47, 56, 58, 59,

61, 69, 70, 73, 106.
Epilepsy, 15, 16, 52, 54.
Esquirol, 58.
Ethnography, 87
Ethnology, 80.
Evidence, testimonial, 225.
Evolution, 76.

F.
Factors, anthropological, 20, 33, 57,

68.

cosmic, 68.
criminal, 20, 68.
economic, 66, 76, 77.
individual, 21, 31, 33, 36, 68, 69.
natural, 68.
physical, 10, 20, 33, 34, 57, 68,

75.

physio-psychic, 54.

social, 11, 20, 21, 33, 54, 56, 57,

58, 67, 68, 69, 76.
theory of, 20.
Family, 77.
Fe*re", 46, 59.
Ferreira, 79.
Ferrero, 43, 44.
Ferri, 4, 18, 19, 20, 21, 23, 25, 26,

27, 28, 33, 35, 54, 56, 57, 67, 68,

69, 70, 71, 72, 103, 168, 174,

181, 193.
Forel, 44.
Fourier, 74..
France, 37, 41, 49.
Francotte, 8.

G.

Gall, 3, 40.
Galton, 49.
Garofalo, 18, 28, 29, 30, 31, 49, 62,

67, 130, 145, 169, 174, 177, 192,

194, 200, 201.
Geill, 41.
Germany, 39.
Giner, 136, 203.
Golfo, 108.
Gross, 41, 209, 226.

H.

Hackel, 33, 42, 71.

Hegel, 79.

Heredity, 7, 13, 15, 42, 47, 56, 60,

61.

Homicide, 103.
Howard, 128, 180.
Hypnotism, 81.

I.

Identification, 146.
Identity, 143, 144, 145, 146.
Imitation, 60.
Impallomeni, 56.
Incendiary, 43.
Infanticide, 103, 146.

INDIA 247

Ingegnieros, 37, 41, 54. life, 77.

Insanity, 24, 25, 141,

Insanity, moral, 6, 8, 9, 17, 23, 49, Martin, ill.

51,53,54,111. Marx, 67

Inspection, 224. Maudsley, 8, 15, 24, 29, 75, 145.

Investigation of crime and crimi- Measures, preventive, 80.

nals, 208, 209, 210, 211, 215, repressive, 80.

216,227. L21,

Irresponsibility, 145, 238. Mm

Italy, 10, 11, 37, 38, 39, 52, 67, 136. Minors, 106.

treatment of, 150.

K. Mongealle, 57.

Kleptomania, 58, 70. Montes, 2.

Kovalewsky, 49. Morel, 6, 7, 8, 45, 60.

Kropotkin, 34, 43, 140, 173, 182. Morelli, 76.

Kurella, 39. Murderer, 31, 43, 45.

L. N.

Lacassagne, 58, 59, 61. Nacke, 17, 39, 40, 49, 61.

Laplace, 33. Neurasthenia, 16, 52, 53, 54.

Lauvergne, 3, 182. Neurosis, 49, 68.

Lavater, 3. Niceforo, 4, 2'2 \

Laveleye, 75. Nordau, 64, 66, 176.

Law, criminal, 124, 125, 132, 202. Nutrition, 48.
of saturation, 121.

of selection, 61, 62. O.

thermic, 57. Occultism, 2.

Ledger, biographical, 218. Oneomaniac, 59.

Legislation, penal, 132. Ottolenghi, 52, 218.
Leveille*, 169, 179.

Lewis, 52. P-

Liszt, 53, 130, 177, 225. Parasitism, 64, 65, 66.

Loiseleur, 5. Pardon, 153.

Lombroso, 2, 4, 10, 12, 16, 17, 18, Pathology, 15, 16.

28, 29, 37, 38, 39, 40, 42, 48, Penalty, death, 192.

52, 67, 79, 80, 81, 82, 130, 193, Penology, 125, 126, 129.

227 radical, 135.

Loria, 66, 67, 71. refonnistic, 130.

traditional, 129.

M. Perrone Capano, 52.

Magnan, 45, 46. Phrenology, 3.

Makarewicz, 124, 129, 130, 169. Physiognomy, 2, 4.

Mancinismo, 4. Physiology, 49, 81.

Manouvrier, 37. Pinel, 5, 8, 183.

Mantegazza, 75. Poletti, 147, 148.

248 INDEX

Portrait, word, 216, 217, 218. School, anthropological, 37.

Positivism, 30, 62, 74, 136. French, 36, 79.
Poverty, 57, 62, 66, 72, 73, 77, 78. German, 54.

Prampolini, 67, 70. Italian, 36, 37, 47, 54, 74, 70,

Priiis, 130, 178. 80.

Prison, 61. Lyonnese, 61.

Probation, officer, 155, 157, 158, psycho-pathological, 55.

159, 160, 168. sociological, 37.

system, 154, 155, 156, 157. Spanish, 203.

Prostitution, 77, 78, 108, 109, 110. Science, penal, 132.

Psychiatry, 2, 5, 53, 59. penitentiary, 123, 127, 202.

Psychology, 60, 80, 83. Segregation, 63.

Psychology, criminal, 81, 82. Sentence, conditional, 153, 154, 164,

Psycho-pathology, 80, 82. 167, 168, 174, 240.

Punishment, 62, 63, 126, 129, 130, indeterminate, 109, 173, 174, 178,

132, 139. 179, 240.

capital, 169. Sentence, short, 166, 167.

Sicily, 73.

o Slang, 118.

Quetelet, 9, 10, 57. Socia^ 67, 69, 70, 71, 72, 73,

Sociology, 36, 69, 70.

K* criminal, 34, 43, 56, 70, 74, 80,

Ravisher, 43. 87

Recidivism, 169, 178, 200, 204. golovieff 135 13g 139

Reformatories, 169, 180, 184, 186, gommer, 40, 92.

Spain, 100, 101, 102, 103, 202, 227.

irn, ISO, l%t. Spanish America, 100, 120, 202, 206,

Elmira, 173, 185, 186, 189, 190, 22?j 229

19L Spencer,' 23, 29, 44, 67, 71, 74, 76,

Reparation, 32, 199, 200, 201. 2(X)

Repression 31, 99. Statistics, 9, 34, 48, 59, 101, 104.

Responsibility, 19, 142, 143, 144, Stigmata> 46> 48> 66> 118>

146, 238, 239. gtore) department, 58.

Retribution, 130. Struggle for existence, 61, 62, 63,
Revelation of traces, 221, 222, 223. ^J ?2 ?3

Ribot'49' Suggestion', 60'.

Robbery, 104, 110. Suicide, 76.

Rftder, 124, 126, 203. Substitutes, penal, 27, 70.

Roncoroni, 52. Swindler, 45.

Roos, 95.

T.

8. Tarde, 5, 10, 36, 55, 57, 58, 143,
Sadism, 53. 144, 145, 176, 225.

Balillaa, 64, 65, 66, 111, 112. Theft, 58, 104, 107.

INI

1M9

Theories, anthropological, 37, 38.

anthropo-eocia !

atavistic, 37, -11, -1J, 41.

of degeneration, 37,

epileptic,

neurasthenia, 52.

pathological, 37, 52.

social, 5s, til.

socialistic, 58, 66.

sociological, 55.
Thief ,1,43,45,110.

Tolstoy, 135, 138.
Turati, 06, 67, 68, 69, 70, 74.
Tutelage, 140, 239.

U.

Union, International, 131, 132, 133,
134, 142, 164, 171, 178.

Vaccaro, 61, C'J
Vagrancy, 77, 197.

Vanllai. • 178.

Varghri

13'J.

Virrhow, 10, 71.
Virgilio, 49.
Vucctich, 214.

Zorla, •

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