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A
JUN 2 9 1921
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STATE NOKMAL SCHOOL,
CRIMINAL SOCIOLOGY
*-<.,
CRIMINAL SOCIOLOGY
IlOS A^LOStJUCS, 6AU.
BY
ENRICO FERRl
PROFESSOR OF CRIMINAL LAW
DEPUTY IN THE ITALIAN PARLIAMENT, ETC.
// 2 3<^
NEW YORK
D. APPLETON AND COMPANY
1900
Authorized Edition.
PREFACE.
The following pages are a translation of that portion
of Professor Ferri's volume on Criminal Sociology
which is immediately concerned with the practical
problems of criminality. The Report of the Govern-
ment committee appointed to inquire into the treat-
ment of habitual drunkards, the Report of the
committee of inquiry into the best means of identi-
fying habitual criminals, the revision of the English
criminal returns, the Reports of committees ap-
pointed to inquire into the administration of prisons
and the best methods of dealing with habitual
offenders, vagrants, beggars, inebriate and juvenile
delinquents, are all evidence of the fact that tht
formidable problem of crime is again pressing its
way to the front and demanding re-examination
at the hands of the present generation. The real
dimensions of the question, as Professor Ferri points
out, are partially hidden by the superficial interpre-
tations which are so often placed upon the returns
relating to crime. If the population of prisons or
penitentiaries should happen to be declining, this
is immediately interpreted to mean that crime is
VI PREFACE.
on the decrease. And yet a cursory examination
of the facts is sufficient to show that a decrease
in the prison population is merely the result of
shorter sentences and the substitution of fines or
other similar penalties for imprisonment. If the
list of offences for trial before a judge and
jury should exhibit any symptoms of diminution,
this circumstance is immediately seized upon as a
proof that the criminal population is declining, and
yet the diminution may merely arise from the fact
that large numbers of cases which used to be tried
before a jury are now dealt with summarily by a
magistrate. In other words, what we witness is a
change of judicial procedure, but not necessarily a
decrease of crime. Again, when it is pointed out
that the number of persons for trial for indictable
offences in England and Wales amounted to 53,044
/in 1874-8 and 56,472 in 1889-93, we are at a loss
Vto see what colour these figures give to the state-
ment that there has been a real and substantial
decrease of crime. The increase, it is true, may
not be keeping pace with the growth of the general
population, but, as an eminent judge recently stated
from the bench, this is to be accounted for by the
fact that the public is every year becoming more
lenient and more unwilling to prosecute. But an
increase of leniency, however excellent in itself, is
not to be confounded with a decrease of crime. In
the study of social phenomena our paramount duty
is to look at facts and not appearances.
But whether criminality is keeping pace with the
growth of population or not it is a problem of great
PREFACE. Vll
magnitude all the same, and it will not be solved,
as Professor Ferri points out, by a mere resort to
punishments of greater rigour and severity. On
this matter he is at one with the Scotch depart-
mental committee appointed to inquire into the
best means of dealing with habitual offenders, va-
grants, and juveniles. As far as the suppression of
vagrancy is concerned the members of the committee
are unanimously of opinion that " the severest enact-
ments of the general law are futile, and that the best
results have been obtained by the milder provisions
of more recent statutes." They also speak of the
" utter inadequacy of the present system in all the
variety of detail which it offers to deter the habitual
offender from a course of life which devolves the
cost of his maintenance on the prison and the poor-
house when he is not preying directly on the public."
The committee state that they have had testimony
from a large number of witnesses supporting the
view that " long sentences of imprisonment effect no
good result," and they arrive at the conclusion that
to double the present sentences would not diminish
the number of habitual offenders. In this conclusion
they are at one with the views of the Royal Com-
mission on Penal Servitude, which acquiesced in
the objection to the penal servitude system on the
ground that it " not only fails to reform offenders,
but in the case of the less hardened criminals and
especially first offenders produces a deteriorating
effect." A similar opinion was recently expressed
by the Prisons Committee presided over by Mr.
Herbert Gladstone. As soon as punishment reaches
VUl PREFACE.
a point at which it makes men worse than they
were before, it becomes useless as an instrument of
reformation or social defence.
The proper method of arriving at a more or less
satisfactory solution of the criminal problem is to
inquire into the causes which are producing the
criminal population, and to institute remedies based
upon the results of such an inquiry. Professor
Ferri's volume has this object in view. The first
chanter, on the data of Criminal Anthropology, is
an inquiry into the individual conditions which tend
to produce criminal habits of mind and action. The
second chapter, on the data of criminal statistics,
is an examination of the adverse social conditions
which tend to drive certain sections of the popula-
tion into crime. It is Professor Ferri's contention
that the volume of crime will not be materially
diminished by codes of criminal law however skil-
fully they may be constructed, but by an ameliora-
tion of the adverse individual and social conditions
of the community as a whole. Crime is a product
of these adverse conditions, and the only effective
way of grappling with it is to do away as far as
possible with the causes from which it springs. Al-
though criminal codes can do comparatively little
towards the reduction of crime, they are absolutely
essential for the protection of society. Accordingly,
the last chapter, on Practical Reforms, is intended
to show how criminal law and prison administration
mny be made more effective for purposes of social
defence.
W. D. M.
CONTENTS.
CHAPTER I.
VAcn
The Data of Criminal Anthropology . , i
Origin of Criminal Sociology, I — Origin of Criminal Anthro-
pology, 4 — Methods of Criminal Anthropology, 4 — Relation
between Criminal Anthropology and C/iminal Sociology, 5 —
Criminal Anthropology studies the organic and mental con-
stitution of the cripiinal, 7 — The criminal skull and brain, 7
— Criminal phj^ji^gnomy, 8 — Physical insensibility among
criminals, 9-«2riminal heredity, 9 — Ctiminal psychology, 9 —
Moral insensibility among criminals, 10 — The criminal mind,
10. II. The data of criminal anthropology only applies to
the habitual or congenital criminal, 11 — The occasional and
habitual criminal, 1 1 — Comparison between the criminal and
non-criminal skull, 12 — Anomalies in the criminal skull, 12
— The habitual criminal, 13 — The crimes of habitual crimi-
nals, 14 — The criminal tjrpe confined to habitual criminals,
18 — The proportion of habitual criminals in the criminal
population, i8 — Forms of habitual criminality, 19 — Forms
. of occasional criminality, 21 — Classification of criminals, 23
— Criminal lunatics, 26 — Moral insanity, 26to-B^^ criminals,
28 — Criminals by acquired habit, 30 — Criminal precocity, 31
— Nature of juvenile crime, 32 — Relapsed criminals, 35 —
Precocity and relapse among criminals, 38 — Criminals of
passion, 39 — Occasional criminals, 41 — Differences between
ix
CONTENTS.
the occasional and the bom criminal, 41 — Criminal types
shade into each other, 44 — Numbers of several classes of
criminals, 46 — Value of a proper classification of criminals,
47 — A fourfold classification, 48.
CHAPTER II.
The p5vTA OF Criminal Statistics . * '5'
^alue of criminal statistics, 51 — The three factors of crime,
52 — Anthropological factors, Jj^Physical factors, 53 —
\3<raal fectors, 53 — Crime a product of complex conditions,
54-^^^ial conditions do not explain crime, 55 — Effects of
temperature on crime, 58 — Ccime a result of biological as
well as social conditions, 59 — The measures to be taken
aafinst crime are of two kinds, preventive and eliminative,
^« — The fluctuations of crime chiefly produced by social
causes, 61 — Steadiness of the graver forms of crime, 63 —
Effect of judicial procedure on criminal statistics, 64 — Crimes
against the person are high when crimes against property are
low, 64 — Is criare increasing or decreasing? 64 — Official
optimism in cniminal statistics, 67 — Density of population
and crime, 73'^Conditions on which the fluctuations of crime
depend, 77 — Quetelet's law of the mechanical regularity of
crime, 80 — The effect of environment on crime, 81 — The
effect of punishment on crime, 82— The value of punishment
is over-estimated, 82 — Statistical proofs of this, 86 — Bio-
logical and sociological proofs, 92 — ^^Crime is diminished by
prevention not by repression, 96 — Legislators and adminis-
trators rely too much on repression, 98 — The basis of the
belief in punishment, 99 — Natural and legal punishment,
103 — The discipline of consequences, 104 — The uncertainty
of legal punishment, 105 — Want of foresight among criminals,
105 — Penal codes cannot alter invincible tendencies, 106 —
Force is no remedy, 107 — Negative yalur'bf punishment, 109.
II. Substitutes for punishment, iioL-^he elimination of the
causes of crime, 113 — Economic remedies for crime, 114 —
Drink and crime, 116 — Drunkenness an effect of bad social
conditions, 120 — Taxation of drink, 120— Laws against
CONTENTS, XI
PAGB
drink, 121 — Social amelioration a substitute for penal law,
121 — Social legislation and crime, 122 — Political ameliora-
tion as a preventive of crime, 124 — Decentralisation a pre-
ventive, 126 — Legal and administrative preventives, 128 —
Prisoners' Aid Societies, 130 — Education and crime, 130—
Popular entertainments and crime, 131 — Physical education
as a remedy for crime, 131 — To diminish crime its causes
must be eliminated, 132 — The aim and scope of penal
substitutes, 134 — Difficulty of applying penal substitutes,
137 — Difference between social and police prevention, 139—
Limited efficacy of punishment, 140 — Summary of con-
clusions, 141.
CHAPTER III.
Practical Reforms • . • • 143
Criminal sociology and penal legislation, 143 — Classification
of punishments, 144 — The reform of criminal procedure, 145
— The two principles of judicial procedure, 147 — Principles
determining the nature of the sentence, 147 — Present prin-
ciples of penal procedure a reaction against mediaeval abuses,
147 — The " presumption of innocence," 148 — The verdict of
•* Not Proven," 149 — The right of appeal, 151 — A second
trial, 151 — Reparation to the victims of crime, 152 — Need for
a Ministry of Justice, 153 — Public and private prosecutors,
154 — The growing tendency to drop criminal charges, 155 —
The tendency to minimise the official returns of crime, 156 —
Roman penal law, 156 — Revision of judicial errors, 158 —
Reparation to persons wrongly convicted, 158 — Provision of
funds for this purpose, 160 — Reparation to persons wrongly
prosecuted, 161 — Many criminal offences should be tried as
civil offences, 162 — The object of a criminal trial, 163. II. The
crime and the criminal, 164 — The stages of a criminal trial,
165 — The evidence, 166 — Anthropological evidence, 166 —
The utilisation of hypnotism, 168 — Psychological and psycho-
pathological evidence, 168 — The credibility of witnesses, 168
Expert evidence, 169 — An advocate of the poor, 172 — The
judge and his qualifications, 172 — Civil and criminal judges
Xll CONTENTS.
should be distinct functionaries, 173 — The student of law
should study criminals, 174 — Training of police and prison
officers, 174 — The status of the criminal judge, 175 — The
authorityofthe judge, 176. III. Thejury, 177 — Origin of the
jury, 178 — Advantages of the jury, 179 — Defects of the jury,
180 — The jury as a protection to liberty, 182 — The jury and
criminal law, 184 — ^Juries untrained and irresponsible, 186 —
Numbers fatal to wisdom, 188 — Defects of judges, 193 — ■
Difference between the English and Continental jury, 194 —
Social evolution and the jury,, 196 — The jury compared to the
jlectorate, 197 — How to utilise the jury, 198. IV. Existing
prison systems a failure, 201 — Defects of existing penal
systems, 201 — The abuse of short sentences, 202 — The
growth of recidivism, 203 — Garofalo's scheme of punish-
ments, 204 — Von Liszt's scheme of punishments, 206 — The
basis of a rational system of punishment, 207 — The inde-
terminate sentence, 207 — Flogging, 210 — The indefinite
sentence for habitual offenders, 211 — Van Hamel's proposals
as to sentences, 212 — The liberation of prisoners on an
indefinite sentence, 213 — The supervision of punishment,
213 — Conditional release, 215 — Good conduct test in prisons,
216 — Police supervision, 216 — Indemnification of the victims
of crime, 217 — The duty of the State towards the victims of
crime, 222 — Defensive measures must be adapted to the
different classes of criminals, 225 — Uniformity- of punish-
ment, 225 — The prison staff, 227 — Classification of prisoners,
227 — Prison labour, 228. V. Asylums for criminal lunatics,
230 — The treatment of insane criminals, 232 — Crime and
madness, 234 — Classification of asylums for criminal lunatics,
237 — The treatment of born criminals, 238 — The death
penalty, 239 — Extension of the death penalty, 243— Inade-
quacy of the death penalty, 245 — Imprisonment for life, 246
— Transportation, 248 — Labour settlements, 249 — Estab-
lishments for habitual criminals, 250 — Criminal heredity, 25 1
— Incorrigible offenders, 252 — Cumulative sentences, 253 —
Uncorrected or incorrigible criminals, 254 — Cellular prisons,
256 — Solitary confinement, 257 — The progressive system of
imprisonment, 257 — The evils of cellular imprisonment, 260
— The cell does not secure separation, 262 — Costliness of the
cellular system, 263 — Labour under the cellular system, 264
— Open-air work the best for prisoners, 265 — The treatment
of habitual criminals, 266 — The treatment of occasional
CONTENTS. Xlll
criminals, 267 — ^The treatment of young offenders, 268 —
Futility of short sentences, 268 — Substitutes for short sen-
tences, 269 — Compulsory work without imprisonment, 271
— Conditional sentences, 271 — Conditional sentences in
Belgium, 273 — Conditional sentences in the United States,
275 — Objections to conditional sentences, 276 — When the
conditional sentence is legitimate, 282 — The treatment of
criminals of passion, 282 — Conclusion, 284.
INTRODUCTION.
THE POSITIVE SCHOOL OF CRIMINAL LAW.
During the past twelve or fourteen years Italy has
poured forth a stream of new ideas on the subject of
crime and criminals ; and only the short-sightedness
of her enemies or the vanity of her flatterers can
fail to recognise in this stream something more than
the outcome of individual labours.
A new departure in science is a simple phenomenon
of nature, determined in its origin and progress, like
all such phenomena, by conditions of time and place.
Attention must be drawn to these conditions at the
outset, for it is only by accurately defining them that
the scientific conscience of the student of sociology is
developed and confirmed.
The experimental philosophy of the latter half
of our century, combined with human biology and
psychology, and with the natural study of human
society, had already produced an intellectual atmos-
phere decidedly favourable to a practical inquiry into
the criminal manifestations of individual and social
life.
XVI INTRODUCTION,
To these general conditions must be added the
plain and everyday contrast between the metaphysical
perfection of criminal law and the progressive increase
of crime, as well as the contrast between legal theories
of crime and the study of the mental characteristics
of a large number of criminals.
From this point onwards, nothing could be more
natural than the rise of a new school, whose object
was to make an experimental study of social patho-
logy in respect of its criminal symptoms, in order to
bring theories of crime and punishment into harmony
with everyday facts. This is the positive school of
criminal law, whereof the fundamental purpose is
to study the natural genesis of criminality in the
criminal, and in the physical and social conditions
of his life, so as to apply the most effectual remedies
to the various causes of crime.
Thus we are not concerned merely with the con-
struction of a theory of anthropology or psychology,
or a system of criminal statistics, nor merely with the
setting of abstract legal theories against other theories
which are still more abstract. Our task is to show
that the basis of every theory concerning the self-
defence of the community against evil-doers must be
the observation of the individual and of society in
their criminal activity. In one word, our task is to
construct a criminal sociology.
For, as it seems to me, all that general sociology
c^n do is to furnish the more ordinary and universal
infetences concerning the life of communities ; and
upon this canvas the several sciences of sociology
are delineated by the specialised observation of each
INTRODUCTION. XVU
distinct order of social facts. In this manner we may
construct a political sociology, an economic sociology,
a legal sociology, by studying the special laws of normal
or social activity amongst human beings, after previ-
ously studying the more general laws of individual
and collective existence. And thus we may construct
a criminal sociology, by studying, with such an aim
and by such a method, the abnormal and anti-social
actions of human beings — or, in other words, by
studying crime and criminals.
Neither the Romans, great exponents as they were
of the civil law, nor the practical spirits of the Middle
Ages, had been able to lay down a philosophic system
of criminal law. It was Beccaria, influenced far more
by sentiment than by scientific precision, who gave a
great impetus to the doctrine of crimes and punish-
ments by summarising the ideas and sentiments of
his age.i Out of the various germs contained in his
generous initiative there has been developed, to his
well-deserved credit, the classical school of criminal
law.
This school had, and still has, a practical purpose,
namely, to diminish all punishments, and to abolish
a certain number, by a magnanimous reaction of
humanity against the arbitrary harshness of mediaeval
times. It had also, and still has, a method of its own,
' Desjardins, in the Introduction to his " Cahiers des Etats Gendraux
en 1789' et la Legislation Criminelle," Paris, 1883, gives a good de-
scription of the state of public opinion in that age. He speaks also
of the charges which were brought against the advocates of the new
doctrines concerning crime, that they upset the moral and social order
of things. Nowadays, charges against the experimental school are cited
from these same advocates ; for the revolutionary of yesterday is very
often the conservative of to-day.
XVlll INTRODUCTION.
namely, to study crime from its first principles, as an
abstract entity dependent upon law.
Here and there since the time of Beccaria another
stream of theory has made itself manifest. Thus
there is the correctional school, which Roeder brought
into special prominence not many years ago. But
though it flourished in Germany, less in Italy and
France, and somewhat more in Spain, it had no long
existence as an independent school, for it was only too
easily confuted by the close sequence of inexorable
facts. Moreover, it could do no more than oppose
a few humanitarian arguments on the reformation of
offenders to the traditional arguments of the theories
of jurisprudence, of absolute and relative justice, of
intimidation, utility, and the like.
No doubt the principle that punishment ought to
have a reforming effect upon the criminal survives as
a rudimentary organ in nearly all the schools which
concern themselves with crime. But this is only a
secondary principle, and as it were the indirect object
of punishment ; and besides, the observations of
anthropology, psychology, and criminal statistics have
finally disposed of it, having established the fact that,
under any system of punishment, with the most severe
or the most indulgent methods, there are always cer-
tain types of criminals, representing a large number
of individuals, in regard to whom amendment is simply
impossible, or very transitory, on account of their
organic and moral degeneration. Nor must we for-
get that, since the natural roots of crime spring not
only from the individual organism, but also, in large
measure, from its physical and social environment,
INTRODUCTION. XIX
correction of the individual is not sufficient to pre-
vent relapse if we do not also, to the best of our
ability, reform the social environment. The utility
and the duty of reformation none the less survive,
even for the positive school, whenever it is possible,
and for certain classes of criminals ; but, as a funda-
mental principle of a scientific theory, it has passed
away.
Hitherto, then, the classical school stands alone,
with varying shades of opinion, but one and distinct
as a method, and as a body of principles and conse-
quences. And whilst it has achieved its aim in the
most recent penal codes, with a great, and too fre-
quently an excessive diminution of punishments, so
in respect of theory, in Italy, Germany, and France,
it has crowned its work with a series of masterpieces,
amongst which I will only mention Carrara's " Pro-
gramme of Criminal Law." As the author tells us in
one of his later editions, from the d priori principle
that " crime is a fact dependent upon law, an infrac-
tion rather than an action," he deduced — and that by
the sheer force of an admirable logic — a complete
symmetrical scheme of legal and abstract conse-
quences, wherein judges are compelled, whether they
like it or not, to determine the position of every
criminal who comes before them.
But now the classical school, which sprang from the
marvellous little work of Beccaria, has completed its
historic cycle. It has yielded all it could, and writers
of the present day who still cling to it can only re-
cast the old material. The youngest of them, indeed,
are condemned to a sort of Byzantine discussion of
XX INTRODUCTION.
scholastic formulas, and to a sterile process of scientific
rumination.
And meantime, outside our universities and
academies, criminality continues to grow, and the
punishments hitherto inflicted, though they can neither
protect nor indemnify the honest, succeed in corrupting
and degrading evil-doers. And whilst our treatises
and codes (which are too often mere treatises cut up
into segments) lose themselves in the fog of their
legal abstractions, we feel more strongly every day,
in police courts and at assizes, the necessity for
those biological and sociological studies of crime and
criminals which, when logically directed, can throw
light as nothing else can upon the administration of
the penal law.
CHAPTER I.
THE DATA OF CRIMINAL ANTHROPOLOGY.
The experimental school of criminal sociology took
its original title from its studies of anthropology ; it is
still commonly regarded as little more than a "criminal
anthropology school." And though this title no longer
corresponds with the development of the school, which
also takes into account and investigates the data of
psychology, statistics, and sociology, it is none the less
true that the most characteristic impetus of the new
scientific movement was due to anthropological studies.
This was conspicuously the case when Lombroso,
giving a scientific form to sundry scattered and frag-
mentary observations upon criminals, added fresh life
to them by a collection of inquiries which were not
only original but also governed by a distinct idea, and
established the new science of criminal anthropology.
It is possible, of course, to discover a very eariy
origin for criminal anthropology, as for general
anthropology ; for, as Pascal said, man has always
been the most wonderful object of study to himself.
For observations on physiognomy in particular we
may go as far backwards as to Plato, and his com-
parisons of the human face and character with those
2 CRIMINAL SOCIOLOGY,
of the brutes, or even to Aristotle, who still earlier
observed the physical and psychological correspon-
dence between the passions of men and their facial
expression. And after the mediaeval gropings in
chiromancy, metoscopy, podomancy and so forth,
one comes to the seventeenth century studies in
physiognomy by the Jesuit Niquetius, by Cortes,
Cardanus, De la Chambre, Delia Porta, &c., who
were precursors of Gall, Spurzheim, and Lavater on
one side, and, on the other, of the modern scientific
study of the emotions, with their expression in face
and gesture, conducted by Camper, Bell, Engel,
Burgess, Duchenne, Gratiolet, Piderit, Mantegazza,
Schaffhausen, Schack, Heiment, and above all by
Darwin.
With regard to the special observation of criminals,
over and above the limited statements of the old
physiognomists and phrenologists, Lauvergne (1841)
in France and Attomyr (1842) in Germany had
accurately applied the theories of Gall to the examin-
ation of convicts ; and their works, in spite of certain
exaggerations of phrenology, are still a valuable
treasury of observations in anthropology. In Italy,
De Rolandis (1835) had published his observations
on a deceased criminal ; in America, Sampson (1846)
had traced the connection between criminality and
cerebral organisation ; in Germany, Camper (1854)
published a study on the physiognomy of mur-
derers; and Ave Lallemant (1858-62) produced a
long work on criminals, from the psychological point
of view. ^
But the science of criminal anthropology, more
THE DATA OF CRIMINAL ANTHROPOLOGY. 3
Strictly speaking, only begins with the observations
of English gaol surgeons and other learned men, such
as Forbes Winslow (1854), Mayhew (i860), Thomson
(1870), Wilson (1870), Nicolson (1872), Maudsley
(1873). and with the very notable work of Despine
(1868), which indeed gave rise to the inquiries of
Thomson, and which, in spite of its lack of synthetic
treatment and systematic unity, is still, taken in
conjunction with the work of Ave Lallemant, the
most important inquiry in the psychological domain
anterior to the work of Lombroso.
Nevertheless, it was only with the first edition of
"The Criminal" (1876) that criminal anthropology
asserted itself as an independent science, distinct from
the main trunk of general anthropology, itself quite
recent in its origin, having come into existence with
the works of Daubenton, Blumenbach, Soemmering,
Camper, White, and Pritchard.
The work of Lombroso set out with two original
faults : the mistake of having given undue importance,
at any rate apparently, to the data of craniology and
anthropometry, rather than to those of psychology ;
and, secondly, that of having mixed up, in the first
two editions, all criminals in a single class. In later
editions these defects were eliminated, Lombroso
having adopted the observation which I made in the
first instance, as to the various anthropological cate-
gories of criminals. This does not prevent certain
critics of criminal anthropology from repeating, with
a strange monotony, the venerable objections as to
the "impossibility of distinguishing a criminal from
an honest man by the shape of his skull," or of
4 CRIMINAL SOCIOLOGY.
" measuring human responsibility in accordance with
different craniological types." *
But these original faults in no way obscure the two
following noteworthy facts — that within a few years
after the publication of "The Criminal" there were
published, in Italy and elsewhere, a whole library of
studies in criminal anthropology, and that a new
school has been established, having a distinct method
and scientific developments, which are no longer to be
looked for in the classical school of criminal law.
1.
What, then, is criminal anthropology? And of
what nature are its fundamental data, which lead us
up to the general conclusions of criminal sociology ?
If general anthropology is, according to the
definition of M, de Quatrefages, the natural history of
man, as zoology is the natural history of animals,
criminal anthropology is but the study of a single
variety of mankind. In other words, it is the natural
history of the criminal man.
Criminal anthropology studies the criminal man in
his organic and psychical constitution, and in his life
as related to his physical and social environment —
just as anthropology has done for man in general, and
for the various races of mankind. So that, as already
said, whilst the classical observers of crime study
* Vol. n. of the fourth edition of "The Criminal " (1889) is specially
concerned with the epileptic and idiotic criminal (referred to alcoholism,
hyst'.ria, mattoidism) wiiether occasional or subject to violent impulse ;
whilst vol. i. is concerned only with congenital criminality and moral
insanity.
THE DATA OF CRIMINAL ANTHROPOLOGY, 5
various offences in their abstract character, on the
assumption that the criminal, apart from particular
cases which are evident and appreciable, is a man of
the ordinary type, under normal conditions of intelli-
gence and feeling, the anthropological observers of
crime, on the other hand, study the criminal first of
all by means of direct observations, in anatomical
and physiological laboratories, in prisons and mad-
houses, organically and physically, comparing him
with the typical characteristics of the normal man, as
well as with those of the mad and the degenerate.
Before recounting the general data of criminal
anthropology, it is necessary to lay particular stress
upon a remark which I made in the original edition
of this work, but which our opponents have too fre-
quently ignored.
We must carefully discriminate between the
technical value of anthropological data concerning
the criminal man and their scientific function in
criminal sociology.
For the student of criminal anthropology, who
builds up the natural history of the criminal, every
characteristic has an anatomical, or a physiological,
or a psychological value in itself, apart from the
sociological conclusions which it may be possible to
draw from it. The technical inquiry into these bio-
psychical characteristics is the special work of this
new science of criminal anthropology.
Now these data, which are the conclusions of the
anthropologist, are but starting-points for the criminal
sociologist, from which he has to reach his legal
and social conclusions. Criminal anthropology is to
6 CRIMINAL SOCIOLOGY.
criminal sociology, in its scientific function, what the
biological sciences, in description and experimenta-
tion, are to clinical practice.
In other words, the criminal sociologist is not in
duty bound to conduct for himself the inquiries of
criminal anthropology, just as the clinical operator is
not bound to be a physiologist or an anatomist. No
doubt the direct observation of criminals is a very
serviceable study, even for the criminal sociologist ;
but the only duty of the latter is to base his legal and
social mferences upon the positive data of criminal
anthropology for the biological aspects of crime, and
upon statistical data for the influences of physical and
social environment, instead of contenting himself with
mere abstract legal syllogisms.
On the other hand it is clear that sundry questions
which have a direct bearing upon criminal anthropo-
logy— as, for instance, in regard to some particular
biological characteristic, or to its evolutionary signifi-
cance— have no immediate obligation or value for
criminal sociology, which employs only the funda-
mental and most indubitable data of criminal
anthropology. So that it is but a clumsy way of
propounding the question to ask, as it is too fre-
quently asked : " What connection can there be
between the cephalic index, or the transverse
measurement of .a murderer's jaw, and his responsi-
bility for the crime which he has committed ? " The
scientific function of the anthropological data is a
very different thing, and the only legitimate question
which sociology can put to anthropology is this : —
*• Is the criminal, and in what respects is he, a normal
THE DATA OF CRIMINAL ANTHROPOLOGY. 7
or an abnormal man ? And if he is, or when he is,
abnormal, whence is the abnormality derived ? Is it
congenital or contracted, capable or incapable of
rectification ? "
This is all ; and yet it is sufficient to enable the
student of crime to arrive at positive conclusions con-
cerning the measures which society can take in order
to defend itself against crime ; whilst he can draw
other conclusions from criminal statistics.
As for the principal data hitherto established by
criminal anthropology, whilst we must refer the
reader for detailed information to the works of
specialists, we may repeat that this new science
studies the criminal in his organic and in his
psychical constitution, for these are the two insepar-
able aspects of human existence.
A beginning has naturally been made with the
organic study of the criminal, both anatomical and
physiological, since we must study the organ before
the function, and the physical before the moral.
This, however, has given rise to a host of miscon-
ceptions and one-sided criticisms, which have not yet
ceased ; for criminal anthropology has been charged,
by such as consider only the most conspicuous data,
with narrowing crime down to the mere result of
conformations of the skull or convolutions of the
brain. The fact is that purely morphological obser-
vations are but preliminary steps to the histological
and physiological study of the brain, and of the body
as a whole.
As for craniology, especially in regard to the two
distinct and characteristic types of criminals —
8 CRIMINAL SOCIOLOGY.
murderers and thieves, an incontestable inferiority
has been noted in the shape of the head, by com-
parison with normal men, together with a greater
frequency of hereditary and pathological departures
from the normal type. Similarly an examination
of the brains of criminals, whilst it reveals in them
an inferiority of form and histological type, gives
also, in a great majority of cases, indications of
disease which were frequently undetected in their
lifetime. Thus M. Dally, who for twenty years past
has displayed exceptional acumen in problems of
this kind, said that " all the criminals who had been
subjected to autopsy (after execution) gave evidence
of cerebral injury." *
Observations of the physiognomy of criminals,
which no one will undervalue who has studied
criminals in their lifetime, with adequate knowledge^
as well as other physical inquiries, external and
internal, have shown the existence of remarkable
types, from the greater frequency of the tattooed
man to exceptionally abnormal conditions of the
frame and the organs, dating from birth, together
with many forms of contracted disease.
Finally, inquiries of a physiological nature into
the reflex action of the body, and especially into
general and specific sensibility, and sensibility to
pain, and into reflex action under external agencies,
conducted with the aid of instruments which record
the results, have shown abnormal conditions, all
tending to physical insensibility, deep-seated and
■ In a discussion at the Medico-Psychological Society of Paris f
** Proceedings " for l88t, i. 93, 266, 280, 483.
THE DATA OF CRIMINAL ANTHROPOLOGY, (,
more or less absolute, but incontestably different in
kind from that which obtains amongst the average
men of the same social classes.
These are organic conditions, it must be at once
affirmed, which account as nothing else can for the
undeniable fact of the hereditary transmission of
tendencies to crime, as well as of predisposition to in-
sanity, to suicide, and to other forms of degeneration.
The second division of criminal anthropology,
which is by far the more important, with a more
direct influence upon criminal sociology, is the
psychological study of the criminal. This recogni-
tion of its greater importance does not prevent our
critics from concentrating their attack upon the
organic characterisation of criminals, in oblivion of
the psychological characterisation, which even in
Lombroso's book occupies the larger part of the text.^
Criminal psychology presents us with the cha-
racteristics which may be called specially descriptive,
such as the slang, the handwriting, the secret symbols,
the literature and art of the criminal ; and on the
other hand it makes known to us the characteristics
which, in combination with organic abnormality,
account for the development of crime in the in-
dividual. And these characteristics are grouped
' A recent example of this infatuation amongst one-sided, and there-
fore ineftectual critics is the work of Colajanni, " Socialism and Criminal
Sociology," Catania, 1889. In the first volume, which is devoted to
criminal anthropology, out of four hundred pages of argumentative
criticism (which does not prevent the author from taking our most
lundamental conclusions on the anthropological classification of
criminals, and on crime, as phenomena of psychical atavism), there are
only six pages, 227-232, for the criticism of psychological types.
10 CRIMINAL SOCIOLOGY.
in two psychical and fundamental abnormalities,
namely, moral insensibility and want of foresight.
Moral insensibility, which is decidedly more con-
genital than contracted, is either total or partial, and
is displayed in criminals who inflict personal injuries,
as much as in others, with a variety of symptoms
which I have recorded elsewhere, and which are
eventually reduced to these conditions of the moral
sense in a large number of criminals — a lack of
repugnance to the idea and execution of the offence,
previous to its commission, and the absence of
remorse after committing it.
Outside of these conditions- of the moral sense,
which is no special sentiment, but an expression of
the entire moral constitution of the individual, as the
temperament is of his physiological constitution, other
sentiments, of selfishness or even of unselfishness, are
not wanting in the majority of criminals. Hence
arise many illusions for superficial observers of
criminal life. But these latter sentiments are either
excessive, as hate, cupidity, vanity and the like, and
are thus stimulants to crime, or else, as with religion,
love, honour, loyalty, and so on, they cease to be forces
antagonistic to crime, because they have no founda-
tion in a normal moral sense.
From this fundamental inferiority of sentiment
there follows an inferiority of intelligence, which,
however, does not exclude certain forms of craftiness,
though it tends to inability to foresee the conse-
quences of crime, far in excess of what is observed
in the average members of the classes of society to
which the several criminals belong.
THE DATA OF CRIMINAL ANTHROPOLOGY. II
Thus the psychology of the criminal is summed
up in a defective resistance to criminal tendencies
and temptations, due to that ill-balanced impulsive-
ness which characterises children and savages.
II.
I have long been convinced, by my study of wor,ks
on criminal anthropology, but especially by direct
and continuous observation from a physiological -or
a psychological point of view of a large number of
criminals, whether mad or of normal intelligence,
that the data of criminal anthropology are not
entirely applicable, in their complete and essential
form, to all who commit crimes. They are to be
confined to a certain number, who may be called
congenital, incorrigible, and habitual criminals. But
apart from these there is a class of occasional
criminals, who do not exhibit, or who exhibit in
slighter degrees, the anatomical, physiological, and
psychological characteristics which constitute the
type described by Lombroso as " the criminal man."
Before further defining these two main classes of
criminals, in their natural and descriptive character-
isation, I must add a positive demonstration, which
can be attested under two distinct forms — (i) by the
results' of anthropological observation of criminals,
and (2) by statistics of relapse, and of the manifesta-
tions of crime which anthropologists have hitherto
chiefly studied.
As for organic anomalies, as I cannot here treat
12
CRIMINAL SOCIOLOGY,
the whole matter in detail, I will simply reproduce
from my study of homicide a summary of results
for a single category of these anomalies, which a
methodical observation of every class of criminals
will carry further and render more precise, as Lom-
broso has already shown (see the fourth edition of
his work, 1889, p. 273).
Homicides sentenced
Persons in whom I detected
To penal servi-
tude (346)
To Imprison-
ment (363)
Soldiers
(7")
No anomaly in the skull ...
One or two anomalies
Three or four anomalies ...
Five or six anomalies
Seven or more anomalies ...
1 1*9 p. c.
47'2 „
33 9 •>
67 »
•3 ..
8-2 p. c.
56-6 „
32*6 „
2-3 »
'3 ..
37-2 p. c
5i-» »
II »
0 „
0 „
(ti
SThat is to say, men with normal skulls were three
times as numerous amongst soldiers as they were
amongst criminals ; of men with a noteworthy
number of anomalies occurring together (three or
four), there were three times as many amongst
criminals as amongst soldiers ; and there was not
one soldier amongst those who showed an extra-
ordinary number (five or more).
This proves to demonstration not only the greater
frequency of anomalous skulls (and the same is true
of physiognomical, physiological, and psychological
anomalies) amongst criminals, but also that amongst
these criminals between fifty and sixty per cent, show
very few anomalies, whilst about one-third of the
whole number present a remarkable combination,
and one-tenth are normal in this respect.
THE DATA OF CRIMINAL ANTHROPOLOGY, I3
Amongst the statistical data exhibiting the primary
characteristics of the majority of criminals, the data
connected with relapsed criminals are especially con-
spicuous. Though relapses, like first offences, are
partly due to social conditions, they also have a
manifest biological cause, since, under the operation
of the same penal system, there are some liberated
prisoners who relapse and some who do not.
The statistics of relapse are unfortunately very
difficult to collect, on account of differences in the
legislation of different countries, and in the prepara-
tion of records, which, even under the more general
adoption of anthropometrical identification, rarely
succeed in preventing the use of fresh names by
professional criminals. So that we may still say, in
the words of one who is a very good judge in this
matter, M. Yvernes, not only that " the Prisons
Congress of London (1872) was compelled to leave
various problems undecided for lack of documentary
evidence, and especially the question of relapsed
criminals," but also that to this day (1879), " we find
varying results in different countries, the exact
significance of which is not apparent."
I have, however, published an essay on interna-
tional statistics of relapsed criminals, from which I
drew the following general conclusion : that even in
prison statistics, which often give higher totals of
relapsed cases than are given by judicial statistics,
because they are more personal, and therefore less
uncertain, we never obtain the full number of relapses,
though the totals given vary from country to country,
from district to district, and from prison to prison. It
14 • CRIMINAL SOCIOLOGY.
would be impossible to state accurately what propor-
tion the numbers given bear to the actual number ;
but I am justified in saying, from all the materials
which I have collected and compared in the aforesaid
essay, that the number of relapses in Europe is
generally between 50 and 60 per cent., and certainly
rather above than below this limit. Whilst the Italian
statistics, for instance, give 14 per cent, of relapses
amongst prisoners sentenced to penal servitude, I
found by experience 37 per cent out of 346 who
admitted to me that they had relapsed ; and, amongst
those who had been sentenced to simple imprison-
ment, I found 60 per cent, out of 363, in place of the
33 per cent, recorded in the prison statistics. The
difference may be due to the particular conditions
of the prisons which I visited ; but in any case
it establishes the inadequacy of the official figures
dealing with relapse.
After this statement of a general fact, which proves,
as Lombroso and Espinas said, that " the relapsed
criminal is the rule rather than the exception," we can
proceed to set down the special proportions of relapse
for each particular crime, so as to obtain an indication
of the forms of crime which are most frequently re-
sorted to by habitual criminals.
For Italy I have found that the highest percentages
of relapse are afforded by persons convicted of theft
and petty larceny, forgery, rape, manslaughter, con-
spiracy, and, at the correctional courts, vagrancy
and mendicity. The lowest percentages are amongst
those convicted of assault and bodily harm, murders,
and infanticide.
THE DATA OF CRIMINAL ANTHROPOLOGY. 15
For France, where legal statistics are remarkably-
adapted for the most minute inquiry, I have drawn
up the following table of statistics from the lists of
persons convicted at the assize courts and correctional
tribunals, taking an average of the years 1877-81,
which is not sensibly affected by the results of suc-
ceeding years.
It will be seen that the average of relapses for
crimes against the person is higher than the average
for the most serious cases of murderous and indecent
assault, which are clearly an outcome of the most
anti-social tendencies (such as parricide, murder, rape,
inflicting bodily harm on parents, &c.). Thus homi-
cide and fatal wounding, though relapse is very fre-
quent in these cases, still display a less abnormal
and more occasional character by their lower position
in the table, as shown in the cases of infanticide, con-
cealment of birth, and abandonment of infants. As
for the very frequent occurrence of relapse in special
crimes, such as assaults on officials and resistance to
authority, which rarely come before the assize courts
— though even there they tend to support the higher
numbers in the tribunals — these are offences which
may also be committed by criminals of every kind,
and which, moreover, depend in some measure on the
social factor of police organisation, and frequently
on the psycho- pathological state of particular indi-
viduals.
The somewhat rare occurrence of relapse in such a
grave type of murder as poisoning is noteworthy.
But this is only an effect of the special psychology of
these criminals, as I have explained elsewhere.
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THE DATA OF CRIMINAL ANTHROPOLOGY. 17
Amongst crimes against property, the most fre-
quent relapses are found in the case of thieves (not
including thefts and breaches of trust by domestic
servants, which thus, proving their more occasional
character, confirm the agreement of statistics with
criminal psychology). The same thing is observed
in regard to forgers of commercial documents and to
fraudulent bankrupts, who are partly drawn into crime
under the stress of personal or general crises. And
the infrequency of relapse amongst postal employees
condemned for embezzlement, and amongst customs
officers who have been guilty of smuggling, is only a
further confirmation of the inducement to crime by
the opportunities met with in each case, rather than
by personal tendencies.
Amongst minor offences, apart from that evasion
of supervision which is no more than a legal con-
dition, there are, both in France and in Italy, very
frequent cases of relapse by vagabonds and mendi-
cants, which is a consequence of social environment,
as well as of the feeble organisation of the indi-
viduals. Other relapses above the average, included
amongst these offences, constitute a sort of accessory
criminality, existing side by side with the habitual
criminality of thieves, murderers, and the like, such as
drunkenness, attacks on public functionaries, infrac-
tions of the regulations of domicile, &c.
In thefts and resistance to authorities, relapse is less
frequent here than in the assize courts, for in the
majority of these minor offences, in their general
forms, there is a greater number of occasional offences,
as is also the case with bankruptcies, defamation,
l8 CRIMINAL SOCIOLOGY.
abuse, rural offences, &c., which demonstrate their
more occasional character by their very low figures.
Hence the statistics of general and specific relapse
indirectly confirm the fact that criminals, as a whole,
have no uniform anthropological type ; and that
the bio-psychical types and anomalies belong more
especially to the category of habitual criminals and
those born into the criminal class, who, after all,
are the only ones hitherto studied by criminal anthro-
pologists.
What, then, is the numerical proportion of habitual
criminals to the aggregate number of criminals ?
In the absence of direct inquiry, it is possible to get
at this proportion indirectly, from facts of two kinds.
In the first place, a study of the works on criminal
anthropology supplies us with an approximate figure,
since the biological characteristics united in indi-
viduals, in sufficient number to create a criminal type,
are met with in between forty and fifty per cent, of
the total.
And this conclusion may be confirmed by other
data of criminal statistics.
Whilst the statistics of relapse give us a very
limited number of crimes and offences committed by
born and habitual criminals, science and criminal
legislation give us a far more extended classifica-
tion.
Ellero reckoned in the penal code of the German
Empire 203 crimes and offences ; and I find that the
Italian code of 1859 enumerates about 180, the new
code about 200, and the French penal code about
150, Thus the kind of crimes of habitual criminals
THE DATA OF CRIMINAL ANTHROPOLOGY. 1 9
would only be about one-tenth of the complete legal
classification of crimes and offences.
It is easy indeed to suppose that born and habitual
criminals do not generally commit political crimes
and offences, nor offences connected with the press,
nor against freedom of worship, nor in corruption of
public functionaries, nor misuse of title or authority ;
nor calumny, making false attestations or false
reports ; nor adultery, incest, or abduction of minors ;
nor infanticide, abortion, or palming of children ; nor
betrayal of professional secrets ; nor bankruptcy
offences, nor damage to property, nor violation of
domicile, nor illegal arrests, nor duels, nor defama-
tion, nor abuse. I say generally ; for, as there are
occasional criminals who commit the offences charac-
teristic of habitual criminality, such as homicides,
robberies, rapes, &c., so there are born criminals who
sometimes commit crimes out of their ordinary course.
It is now necessary to add a few statistical data in
respect of the classification of crime, which I take,
like the others, from the essay already mentioned.
Habitual Criminality
(homicide, theft, conspiracy, rape,
incendiarism, vagrancy, swind-
ling, forgery).
Italy.
France.
Belgium.
8
<
B
i
"5
<
4
3
i
<
c
3
1
Proportion of the persons
convicted of these crimes
and offences to the total
number of convictions ...
p. c.
84
p. c.
32
p. c.
38
p. c.
90
p. c.
34
p. c.
35
p. c.
86
p. c.
30
p. c.
30
20 CRIMINAL SOCIOLOGY.
That is to say, habitual criminality would be repre-
sented, in Italy, by about 40 per cent, of the total
number of condemned persons, and by somewhat less
in France and Belgium. This would be accounted
for in Belgium by the exclusion of vagrancy ; but the
difference is virtually due to the greater frequency in
Italy of certain crimes, such as homicide, highway
robbery with violence, and conspiracies.
Further, it is apparent that in all these countries
the types of habitual criminality, with the exception
of thefts and vagrancy, are in greater proportion at
the assizes, on account of their serious character.
The actual totals, however, are larger at the
tribunals, for as, in the scale of animal life, the
greatest fecundity belongs to the lower and smaller
forms, so in the criminal scale, the less serious
offences (such as simple theft, swindling, vagrancy,
&c.) are the more numerous. Thus, out of the total
of 38 per cent, in Italy, 32 belong to the tribunals
and 6 to the assizes ; out of 35 per cent, in France,
33 belong to the tribunals and 2 to the assizes ; and
out of 30 per cent in Belgium, 29 belong to the
tribunals and i to the assizes. This also is partly
accounted for by legislative distinctions as to the
respective jurisdictions of these courts.
As to the particulars of the totals, it is found that
thefts are the most numerous types in Italy (20 per
cent), in France (24 per cent), in Belgium (23 per
cent.), and in Prussia (37 per cent, including breaches
of trust).!
* Starke, "Verbrechen und Verbrecher in Preussen," Berlin, 1884,
p. 92.
THE DATA OF CRIMINAL ANTHROPOLOGY, 21
After theft, the most numerous in Italy are vagrancy
(5 per cent), homicides (4 per cent), swindling (3 per
cent), forgery (-9 per cent), rape (•4 per cent), con-
spiracy (-4 per cent), and incendiarism ('2 per cent).
In France and Belgium we find the same relative
frequency of vagrancy and swindling ; but homicide,
incendiarism, and conspiracy are less frequent, whilst
rape is more common in France ("5 per cent) and in
Belgium (i per cent).
Such then are the most frequent forms of habitual
criminality in the generality of condemned persons ;
and it will be useful now to contrast the more fre-
quent forms of occasional criminality. For Italy the
only judicial statistics which are valuable for detailed
inquiry are those of 1863, 1869-72. For France,
every volume of the admirable series of criminal
statistics may be utilised.
It will be seen that the frequency of these occa-
sional crimes and offences in Italy and in France
is very variable, though assaults and wounding,
resistance ,to authorities, damage, defamation and
abuse, are the most numerous in both countries.
The proportion of each offence to the total also
varies considerably, not only through a difference
of legislation between Italy and France in regard to
poaching, drunkenness, frauds on refreshment-house
keepers, and so forth, but also by reason of the
different condition of individuals and of society in
the two countries. Thus assaults and wounding,
which in Italy comprise 23 per cent of the total of
convictions, reach in France no more than 14 per
cent, whilst resistance to the authorities, &c., which
Crimes and Offences of Greatest
Frequency
(not including tliose of Habitual Criminals).
Wilful Assault and Wounding
Illegally carrying Arms
Resistance to Authority, Assaults and
Violence against Public Function-
aries
Injury to Property
Defamation and Abuse
Written or Spoken Threats
Illegal Games
Political Crimes and Offences
Press Crimes and Offences
Embezzlement, Corruption, Malfeasance
of Public Functionaries
Escape from Detention
False Witness
Violation of Domicile
Calumny
Exposure, Palming or " Suppression "
of Infants
Bankruptcy Offences
Offences against Religion and Ministers
of Religion
Duelling
Abortion
Offences against the Game Laws
Drunkenness
Offences against Public Decency
Adultery
Offences against Morality, with In-
citement to Immorality
Involuiitaiy Homicide
,, Wounding
„ Incendiarism
Illegal Practising of Medicine and
Surgery
Frauds on Keepers of Refreshment
Houses
Rural Offences
Yearly Average of Condemned Persons.
Italy, 1863-72.
p. c.
10
Y^aily Average of Convictions,
Gross Totals
317
•4
6,273
5
2
1-8
I '4
I
43.584
p. c
24
7
4
2
1-6
I "2
•8
•2
•4
France, 1877-81.
p. c.
3
49,857
•09
•2
1-3
•09
3.300
p-
14
•3
10
'1-6
1-6
•2
a -I
4 -2
•6
•10
•9
•08
•08
•I
•I
■5
•6
•07
•07
•01
13
127
1*5
I '5
1-8
17
•5
•5
•2
•2
•2
•2
•6
•6
•3
•2
•2
•2
1-4
1-4
6
'b
163,997
167,297
« l)eva«tation of crops, destruction offences, * Unauthorised gaminghouses; secret lotteries.
3 An exceptional figure, owing to 528 conviction* in 1863, whilst the average of the other years was
nine convictioiu. 4 Electoral ofiences.
THE DATA OF CRIMINAL ANTHROPOLOGY. 23
are 4 per cent, in Italy, touch 9 per cent in France.
Sexual crimes and offences (as we saw in the case of
rape), such as abortion, adultery, indecent assaults,
and incitement to immorality, which in Italy present
very small and negligible figures, are more frequent
in France. Whilst the illegal carrying of arms,
threats, false witness, escape from detention, viola-
tions of domicile, calumny, are of greater frequency
in Italy than in France, the contrary is true of
bankruptcy offences, political and press crimes and
offences, on account of a manifest difference of the
moral, economic, and social conditions of the two
countries, which are plainly discernible behind these
apparently dry figures.
In addition to this demonstration, we have given
anthropological and statistical proofs of the funda-
mental distinction between habitual and occasional
criminals, which had been pointed out by many
observers, but which had hitherto remained a simple
assertion without manifest consequences.
This same distinction ought to be not only the
basis of all sociological theory concerning crime, but
also a point of departure for other distinctions more
precise and complete, which I set forth in my pre-
vious studies on criminals, and which were subse-
quently reproduced, with more or less of as:;ent, by
all criminal sociologists.
In the first place, it is necessary to distinguish,
amongst habitual criminals, those who present a
conspicuous and clinical form of mental aberration^
which accounts for their anti-social activity.
24 CRIMINAL SOCIOLOGY.
In the second place, amongst habitual criminals
who are not of unsound mind, however little the
inmates of prisons may have been observed with
adequate ideas and experience, there is a clear
indication of a class of individuals, physically or
mentally abnormal, induced to crime by inborn
tendencies, which are manifest from their birth, and
accompanied by symptoms of extreme moral in-
sensibility. Side by side with these, another class
challenges attention, of individuals who have also
been criminals from childhood, and who continue to
be so, but who are in a special degree a product of
physical and social environment, which has per-
sistently driven them into the criminal life, by their
abandonment before and after the first offence, and
which, especially in the great towns, is very often
forced upon them by the actual incitement of their
parents.
Amongst occasional criminals, again, a special
category is created by a kind of exaggeration of the
characteristics, mainly psychological, of the type itself-
In the case of all occasional criminals, the crime is
brought about rather by the effects of environment
than by the active tendencies of the individual ; but
whilst in most of these individuals the deciding cause
is only a circumstance affecting all alike, with a few
it is an exceptional constraint of passion, a sort of
psychological tempest, which drives them into
crime.
Thus, then, the entire body of criminals may be
classed in five categories, which as early as 1880
I described as criminal madmen, born criminals,
THE DATA OF CRIMINAL ANTHROPOLOGY. 2$
criminals by contracted habits, occasional criminals,
and criminals of passion.
As already observed, criminal anthropology will
not finally establish itself until it has been developed
by biological, psychological, and statistical mono-
graphs on each of these categories, in such a manner
as to present their anthropological characteristics
with greater precision than they have hitherto
attained. So far, observers continue to give us
the same characteristics for a large aggregate of
criminals, classifying them according to the form
of their crime rather than according to their bio-
social type. In Lombroso's work, for instance, or
in that of Marro (and to some extent even in my
work on homicide), the characteristics are stated
for a total, or for legal categories of criminals, such
as murderers, thieves, forgers, and so on, which
include born criminals, occasional and habitual
criminals, and madmen. The result is a certain
measure of inconsistency, according to the pre-
dominance of one type or the other in the aggre-
gate of criminals under observation. This also
contributes to render the conclusions of criminal
anthropology less evident.
Nevertheless, we may sum up the inquiries which
have been made up to the present time ; and in
particular we may now point out the general charac-
teristigs of the five classes of criminals, in accordance
with my personal experience in the observation of
criminals. It is to be hoped that successive observa-
tions of a more methodical kind will gradually rein-
force the accuracy of this classification of symptoms.
26 CRIMINAL SOCIOLOGY.
In the first place, it is evident that in a classifi-
cation not exclusively biological, if it is to form
the anthropological basis of criminal sociology,
criminals of unsound mind must in all fairness be
included.
The usual objection, recently repeated by M.
Joly (" Le Crime," p. 62), which holds the term
" criminal madness " to be self-contradictory, since
a madman is not morally responsible, and therefore
cannot be a criminal, is not conclusive. We main-
tain that responsibility to society, the only re-
sponsibility common to all criminals, exists also for
criminals of unsound mind.
Nor, again, is it correct to say, with M. Bianchi,
that mad criminals should be referred to psychiatry,
and not to criminal anthropology ; for, though
psychiatry is concerned with mad criminals in a
psycho-pathological sense, this does not prevent
criminal anthropology and sociology from also con-
cerning themselves with the same subjects, in order
to constitute the natural history of the criminal, and
to suggest remedies in the interest of society.
As for criminals of unsound mind, it is necessary
to begin by placing in a separate category such as
cannot, after the studies of Lombroso and the Italian
school of psychiatry, be distinguished from the born
criminals properly so-called. These are the persons
tainted with a form of insanity which is known under
various names, from the " moral insanity " of Prit-
chard to the " reasoning madness " of Verga. Moral
insanity, illustrated by the works of Mendel, Legrand
du SauUe, Maudsley, Krafft-Ebing, Savage, Hugues,
THE DATA OF CRIMINAL ANTHROPOLOGY. 27
Hollander, Tamburini, Bonvecchiato, which, with the
lack or atrophy of the moral or social sense, and of
apparent soundness of mind, is properly speaking only
the essential psychological condition of the born
criminal.
Beyond these morally insane people, who are very
rare — for, as Krafift-Ebing and Lombroso have
pointed out, they are found more frequently in
prisons than in mad-houses — there is the unhappily
large body of persons tainted by a common and
clinical form of mental alienation, all of whom are
apt to become criminal.
The whole of these criminals of unsound mind
cannot be included in a single category ; and such,
indeed, is the opinion expressed by Lombroso, in
the second volume of the fourth edition of his work,
after his descriptive analysis of the chief forms of
mental alienation. As a matter ot fact, not only
are the organic, and especially the psychological,
characteristics of criminal madmen sometimes
identical with and sometimes opposed to those of
born and occasional criminals, but these very charac-
teristics vary considerably between the different forms
of mental alienation, in spite of the identity of the
crime committed.
It is further to be observed, in respect of criminal
madmen, that this category also includes all the
intermediary types between complete madness and
a rational condition, who remain in what Maudsley
has called the "middle zone." The most frequent
varieties in the criminality of these partially insane
persons, or " mattoides," are the perpetrators of
28 CRIMINAL SOCIOLOGY,
attacks upon statesmen, who are generally men with
a grievance, irascible men, writers of insane docu-
ments, and the like, such as Passanante, Guiteau,
and Maclean.
In the same category are those who commit terrible
crimes without motive, and who nevertheless, accord-
ing to the complacent psychology of the classical
school, would be credited with a maximum of moral
soundness.
Again, there are the necrophiles, like Sergeant
Bertrand, Verzeni, Menesclou, and very probably the
undetected "Jack the Ripper" of London, who are
tainted with a form of sexual psychopathy. Yet
again there are such as are tainted with hereditary
madness, and especially the epileptics and epileptoids,
who may also be assigned to the class of born
criminals, according to the plausible hypothesis of
Lombroso as to the fundamental identity of con-
genital criminality, moral madness, and epilepsy. I
have always found in my own experience that out-
rageous murders, not to be explained according to
the ordinary psychology of criminals., are accompanied
by psychical epilepsy, or larvea.
Born or instinctive criminals are those who most
frequently present the organic and psychological
characteristics established by criminal anthropology.
These are either savage or brutal men, or crafty and
idle, who draw no distinction between homicide,
robbery or other kinds of crime, and honest industry.
" They are criminals just as others are good working-
men," says Fregier ; and, as Romagnosi put it, actual
THE DATA OF CRIMINAL ANTHROPOLOGY. 29
punishment affects them much less than the menace
of punishment, or does not affect them at all, since
they regard imprisonment as a natural risk of their
occupation, as masons regard the fall of a roof, or
as miners regard fire-damp. " They do not suffer
in prison. They are like a painter in his studio,
dreaming of their next masterpiece. They are on
good terms with their gaolers, and even know how to
make themselves useful." '
The born criminals and the occasional criminals
constitute the majority of the characteristic and
diverse types of homicide and thief. Prison governors
call them "gaol-birds." They pass on from the police
to the judge and to the prison, and from the prison to
the police and to the judge, with a regularity which
has not yet impaired the faith of law-makers in the
efficacy of punishment as a cure for crime.^
No doubt the idea of a born criminal is a direct
challenge to the traditional belief that the conduct of
every man is the outcome of his free will, or at most
of his lack of education rather than of his original
physio-psychical constitution. But, in the first place,
even public opinion, when not prejudiced in favour of
the so-called consequences of irresponsibility, recog-
nises in many familiar and everyday cases that there
are criminals who, without being mad, are still not as
ordinary men ; and the reporters call them " human
tigers," " brutes," and the like. And in the second
place, the scientific proofs of these hereditary tenden-
» Moreau, " Souvenirs de la petite at grande Roquette," Paris,
1884, ii. 440.
' Wayland, " The Incorri£jible," in the Jmmal of Mental Scienci,
1888. Sichart, " Criminal Incorrigibles."
4
30 CRIMINAL SOCIOLOGY.
cies to crime, even apart from the clinical forms of
mental alienation, are now so numerous that it is use-
less to insist upon them further.
The third class is that of the criminals whom, after
my prison experience, I have called criminals by
contracted habit These are they who, not pre-
senting the anthropological characteristics of the
born criminals, or presenting them but slightly,
commit their first crime most commonly in youth,
or even in childhood — almost invariably a crime
against property, and far more through moral weak-
ness, induced by circumstances and a corrupting
environment, than through inborn and active ten-
dencies. After this, as M. Joly observes, either
they are led on by the impunity of their first
offences, or, more decisively, prison associations de-
bilitate and corrupt them, morally and physically,
the cell degrades them, alcoholism renders them
stupid and subject to impulse, and they continually
fall back into crime, and become chronically prone to
it And society, which thus abandons them, before
and after they leave their prison, to wretchedness,
idleness, and temptations, gives them no assistance in
their struggle to gain an honest livelihood, even when
it does not thrust them back into crime by harassing
police regulations, which prevent them from finding or
keeping honest employment^
Of those criminals who begin by being occasional
criminals, and end, after progressive degeneration, by
exhibiting the features of the born criminals, Thomas
More said, " What is this but to make thieves for the
' Fliche, " Comment en devient Criminel," Paris, i££6.
THE DATA OF CRIMINAL ANTHROPOLOGY. 31
pleasure of hanging them ?" And it is just this class
of criminals whom measures of social prevention might
reduce to a minimum, for by abolishing the causes we
abolish the effects.
Apart from their organic and psychological
characteristics, innate or acquired, there are two
bio-sociological symptoms which seem to me to
be common, though for distinct reasons, to born
criminals and habitual criminals. I mean precocity
and relapse. The occasional crime and the crime of
passion do not, as a rule, occur before manhood, and
rarely or never lead to relapse.
Here are a few figures concerning precocity,
derived from international prison statistics: —
Prisoners under 20 years of age.
Male.
Female.
p. c.
p. c.
Italy (1871-6)
8-8
6-8
France ('72-5)
10
7-6
Prussia ('71-7 — not over 19 years)
2-8
2-6
Austria ('72-5)
9-6
IO-6
Hungary ('72-6)
4-2
9
England ('72-7 — not over 24) ...
27-4
145
Scotland {'72-7)
20
7-8
Ireland ('72-7)
9
3 "2
Belgium {'74-S)
20 -8
Holland ('72-7)
22-8
37
Sweden ('73-7)
197
17
Switzerland ('74)
6-6
7
Denmark ('74-5)
9-9
9-6
More recent figures show that the yearly average
in France, for 1876-80, out of 4,374 persons brought
to trial, was i per cent, under sixteen years of age,
and 17 per cent, between sixteen and twenty-one ;
32 CRIMINAL SOCIOLOGY.
whilst in 1886 the same percentages were "60 and
14. Out of 146,217 accused before the tribunals there
were 4 per cent, under sixteen, and 14 per cent
between sixteen and twenty-one. Out of 25,135
females there were 4 per cent, under sixteen, and
1 1 per cent, between sixteen and twentj'-one ; whilst
in 1886 the percentages were 3 and 14 of males, 2'5
and 14 of females.
In Prussia, of persons accused of crimes and
offences in 1860-70, 4 per cent, were under eighteen
years.
In Germany, of persons condemned in 1886, 3 per
cent, were between twelve and fifteen, 6 per cent,
between fifteen and eighteen, and 16 per cent,
between eighteen and twenty-one years.
In Italy, out of 5,189 persons condemned at the
assizes in 1887, 3 per cent, were between fourteen
and eighteen, and 12 per cent, between eighteen and
twenty-one. Out of 65,624 tried before the tribunals,
1*2 per cent, were under fourteen, 5 per cent, were
between fourteen and eighteen, and 13 per cent.
between eighteen and twenty-one. There is a con-
tinual increase of precocious criminals in Italy.
Prisoners condemned at the assizes under the age
of twenty-one stood at 15 per cent from 1880 to
1887, whilst those of a similar age who were tried
before the tribunals rose from 17 to 20 per cent.
To these numerical data may be added others ot
a qualificative character, showing that precocity is
most frequent in respect of the natural crimes and
offences which are usually observed amongst born
and habitual criminals.
THE DATA OF CRIMINAL ANTHROPOLOGY. 33
In France the younger prisoners in 1882 had been
sentenced in the following proportions : —
For murder and poisoning
,, homicide, assaults, and wounding
,, incendiarism
,, indecent assault
,, specified thefts, forgery, uttering
false coin
„ simple theft, swindling
,, mendicity and vagrancy
,, other crimes and oftences
„ defiance of parents
Male.
Female.
•09 per cent.
•5 per cent
1-6
1-5 ..
1-8
2
3-5
11-8 „
5-2
2-4 ,.
6o-8
497
23
205 „
27
•«
I
IO-5 „
These figures, showing a greater frequency amongst
females of precocious crimes against the person, and
amongst males against property, are approximately
repeated in Switzerland, where young prisoners in
1870-74 had been sentenced in these proportions : —
For crimes and offences against the person .
. 12' I per cent
,. ,, >, morality
• 57
,, incendiarism
4'3 ..
,, theft
• 655 »
,, swindling
5-4
,, forgery
1-9
„ vagrancy
. 4-6 „
The judicial statistics of France and Italy give
these proportions : —
34
CRIMINAL SOCIOLOGY.
Assize Courts.
Homicide
Murder(and robbery with homicide)
Parricide
Infanticide
Imprisonment
Wilful wounding; (followed by death)
Abortion
Rape and indecent assault on adults
„ „ children
Resistance to and attacks on public
functionaries
Incendiarism
False money
Forgery in public and private docu-
ments
Extortion, highway robbery with
violence
Specified and simple theft
Unintentional wounding
Total of condemned and accused
Italy— 1866.
Condemned.
Under
14-
p. c.
14
14
14
14
28
p. c.
25
II
•5
I
19
9
19
179
p. c.
24
10
24
7
7
16
475
France — 1386
Accused.
Under
p. c.
37
37
7-5
37
3-7
3-7
41
p. c
37
6
•9
6
•I
3-8
II
1-2
II
•3
3"i
2-5
2*1
3-6
51
27 641
The French statistics for the tribunals — no complete
Italian statistics being available, are as follows : —
Correctional Tribunals.
France — 1886.
Male.
Female.
Offences.
Under 16.
16 — 21.
Underi6.
16 — 21.
per cent.
percent.
per cent.
per cent.
Resistance to authorities
•2
2-2
•I
I-I
Assaults on public functionaries ...
•8
5
•7
4*1
Vagrancy
4"4
1 1 "2
32
5-5
Mendicity
4-8
4
125
3-6
Wilful wounding
5'i
i8-5
3-6
II
Unintentional wounding
•8
7
•I
•I
Offences against public decency ...
1-6
1-8
31
3 "3
Defamation and abuse
•I
•2
i"i
1-6
Theft
57*5
30 '4
63
54-3
Frauds on refresliment-house keepers
•I
2-1
•I
•6
Swindling
•5
1*3
2-4
3 '3
Breach of confidence
•9
I '3
7
1-2
Injury to crojjs and plants
Game-law offences
•5
•3
•3
•5
151
14-2
II
•2
Total of accused
4.937
24,811
659
2,821
THE DATA OF CRIMINAL ANTHROPOLOGY. 35
Here we have a statistical demonstration of a more
frequent precocity, amongst various forms of crimi-
nality, in respect of inborn tendencies (murder and
homicide, rape, incendiarism, specific thefts), or in
respect of tendencies contracted by habit (simple
theft, mendicity, vagrancy).
Also this characteristic of precocity is accompanied
by that of relapse, which accordingly we have seen
to be more frequent in the same forms of natural
criminality, and which we can now tabulate in
respect of its persistency in these born and habitual
criminals.
It has been well said that the large number of
relapsed persons who are brought to trial year after
year proves that thieves ply their trade as a regular
calling ; the thief who has once tasted prison life is
sure to return to it.^ And again, there are very few
cases in which a man or a woman who has turned
thief ceases to be one. Whatever the reason may be,
as a matter of fact the thief is rarely or never reformed.
When you can turn an old thief into an honest worker,
you may turn an old fox into a house dog.*
We must, however, read these testimonies of
practical men, which could easily be multiplied, in
the light of our distinction between incorrigible
criminals, who are so from their birth, and such as
are made incorrigible by the effect of their prison
and social environment. The former could scarcely
be reduced in number, whilst the latter could be
' Quarterly Revieiv, 187 1, "The London Police."
• Thomson, "The Psychology of Criminals," Journal 0/ Mental
Science f 1870.
36 CRIMINAL SOCIOLOGY,
considerably diminished by the penal alternatives of
which I will speak later.
The following statistics of relapse are quoted from
Yvernes, "La Recidive en Europe " (Paris, 1874) : —
Relapses. ^^^^^^:^-
Sweden— 1871.
Thieves.
France — 1 826-74.
Accused
and brought
to trial.
Italy— 1870.
Accused
and brought
to trial.
Once... ... 38 per cent.
Twice ... 18 ,,
54 per cent.
28
45 per cent.
20 ,,
60 per cent.
30 ,.
Three times 44 „
18 „
35
10 „
In Prussia (1878-82), 17 per cent, had relapsed
once, 16 per cent, twice, 16 per cent, three times, 13
per cent, four times, 10 per cent five times, and 28
per cent, six times or oftener.^
At the Prisons Congress of Stockholm the following
figures were given for Scotland. Out of a total of
forty-nine relapsed prisoners, 16 percent, had relapsed
once, 13 per cent, twice or three times, 6 per cent,
four or five times, 6 per cent, from six to ten times,
5 per cent, from ten to twenty times, 4 per cent, from
twenty to fifty times, and i per cent, more than fifty
times.
At the meeting of the Social Science Congress,
held at Liverpool, in 1876, Mr. Nugent stated that
upwards of 4,107 women had relapsed four times or
oftener, and that many of them were classed as
incorrigible, having been convicted twenty, forty, or
fifty times, whilst one had been convicted 130 times.
The judicial statistics of Italy for 1887 give the
following results : —
' Starke, " Verbrechen und Verbrecher," Berlin, 1884, p. 229.
THE DATA OF CRIMINAL ANTHROPOLOGY. 37
Italy— Convicted, per cent.
Relapses.
Justices of
Peace.
Tribunals.
Assizes.
Once
Two to five times
More than five times ...
57
34
9
42
40
18
50
40
10
Actual totals of relapses
27,068
16,240
1,870
I have found from my inquiries amongst 346
condemned to penal servitude and 353 prisoners
from the correctional tribunals the following per-
centages : —
Relapsed.
Convicts.
Imprisoned.
Once
832 .
26
Twice
12-5
.. i6-s
3 tunes
31
14-6
4 ..
—
IO-8
5 »
6-8
6-6
6 „
—
5-2
7 M
1-6
71
8 „
—
:. 2-8
9 ..
—
2-8
10 „
—
23
II »
—
•9
12 „
—
•5
13 »
—
•9
14 .f*
—
1-4
»5 »
—
•9
20 „
—
•5
Actual totals of relapses 128
Chronic relapse is naturally less frequent in the case
of those condemned to long terms ; but it is a con-
spicuous symptom of individual and social pathology
in the two classes of born and habitual criminals.
38 CRIMINAL SOCIOLOGY.
Lombroso, in the second volume of his work on
" The Criminal," denies that precocity and relapse
are characteristics distinguishing born and habitual
from occasional criminals. But it is only a question
of terms. He considers that born and habitual
criminals confine themselves almost exclusively to
serious crime, and occasional criminals to minor
offences. And as the figures which I have given
show that precocity and relapse are even more
frequent for minor offences than for crimes, he
thinks that they contradict instead of confirming
my conclusions.
The mere seriousness of an act cannot by any
means divide the categories of criminals ; for homi-
cide as well as theft, assault and battery as well
as forgery, may be committed, though in different
psychological and social conditions, as easily by
born and habitual criminals as by occasional
criminals and criminals of passion.
Moreover, the figures which I have given show that
precocity and relapse are mo.e frequent in the forms
of criminality which, apart from their gravity, are the
common practices of born and habitual criminals,
such as murder, homicide, robbery, rape, &c., whilst
they are far more uncommon, even if tliey can be
said to be observed at all, in the case of the crimes
and offences usually committed by occasional crimi-
nals, such as infanticide, and certain of the offences
mentioned above.
It remains to say something of the occasional
criminals, and the criminals of passion.
THE DATA OF CRIMINAL ANTHROPOLOGY, 39
The latter are but a variety of the occasional crimi-
nals, but their characteristics are so specific that they
may be very readily distinguished. In fact Lombroso,
in his second edition, supplementing the observations
of Despine and Bittinger, separated them from other
criminals, and classified them according to their
symptoms. I need only summarise his observa-
tions.
In the first place, the criminals who constitute the
strongly marked class of criminals by irresistible
impulse are very rare, and their crimes are almost
invariably against the person. Thus, out of 71
criminals of passion inquired into by Lombroso, 69
were homicides, 6 had in addition been convicted of
theft, 3 of incendiarism, and i of rape.
It may be shown that they number about 5 per
cent, of crimes acjainst the person.
They are as a rule persons of previous good
behaviour, sanguine or nervous by temperament, of
excessive sensibility, unlike born or habitual crimi-
nals, and they are often of a neurotic or epileptoid
temperament, of which their crimes may be, strictly
speaking, an unrecognised consequence.
Frequently they transgress in their youth, espe-
cially in the case of women, under stress of a passion
which suddenly spurns constraint, like anger, or out-
raged love, or injured honour. They are highly
emotional before, during, or after the crime, which
they do not commit treacherously, but openly, and
often by ill-chosen methods, the first that present
themselves. Now and then, however, one encounters
criminals of passion who premeditate a crime, and
SlAii:uo.x.*-L^^.i^iJL,
40 CRIMINAL SOCIOLOGY.
carry it out treacherously, either by reason of their
colder and less impulsive temperament, or as the out-
come of preconceived ideas or a widespread sentiment,
in cases where we have to do with a popular form of
lawlessness, such as the vendetta.
This is why the test of premeditation has no abso-
lute value in criminal psychology, as a distinction
between the born criminal and the criminal of
passion ; for premeditation depends especially on
the temperament of the individual, and is exem-
plified in crimes committed by both anthropological
types.
Amongst other symptoms of the criminal of
passion, there is also the precise motive which leads
to a crime complete in itself, and never as a means of
attaining another criminal purpose.
These offenders immediately acknowledge their
crime, with unassumed remorse, frequently so keen
that they instantly commit, or attempt to commit,
suicide. When convicted — as they seldom are by a
jury — they are always repentant prisoners, and
amend their lives, or do not become degraded, so
that in this way they encourage superficial observers
to affirm as a general fact, and one possible in all
circumstances, that ameliorative effect of imprison-
ment which is really a mere illusion in the case of
the far more numerous classes of born and habitual
criminals.
In these same oflfenders we very rarely observe, if
at all, the organic anomalies which create a criminal
type. And even the psychological characteristics are
much slighter in countries where certain crimes of
THE DATA OF CRIMINAL ANTHROPOLOGY. 4I
passion are endemic, almost ranking amongst the
customs of the community, like the homicides which
occur in Corsica and Sardinia for the vindication of
honour, or the political assassinations in Russia and
Ireland.
The last class is that of occasional criminals, who
without any inborn and active tendency to crime
lapse into crime at an early age through the tempta-
tion of their personal condition, and of their physical
and social environment, and who do not lapse intc
it, or do not relapse, if these temptations disappear.
Thus they commit those crimes and offences which
do not indicate natural criminality, or else crimes
and offences against person or property, but under
personal and social conditions altogether different
from those in which they are committed by born and
habitual criminals.
There is no doubt that, even with the occasional
criminal, some of the causes which lead him into
crime belong to the anthropological class ; for ex-
ternal causes would not suffice without individual
predispositions. For instance, during a scarcity or a
hard winter, not all of those who experience privation
have recourse to theft, but some prefer to endure
want, however undeserved, without ceasing to be
honest, whilst others are at the utmost driven to beg
their food ; and amongst those who yield to the
suggestion of crime, some stop short at simple theft,
whilst others go as far as robbery with violence.
But the true difference between the born and the
occasional criminal is that, with the former, the
42 CRIMINAL SOCIOLOGY.
external cause is less operative than the internal
tendency, because this tendency possesses, as it were,
a centrifugal force, driving the individual to commit
crime, whilst, for the occasional criminal, it is rather
a case of feeble power of resistance against external
causes, to which most of the inducement to crime is
due.
The casual provocation of crime in the born
criminal is generally the outcome of an instinct or
tendency already existing, and far more of.a pretext
than an occasion of crime. With the occasional
criminal, on the other hand, it is the casual provoca-
tion which matures, no doubt in a favouring soil,
the growth of criminal tendencies not previously
developed.
For this reason Lombroso calls the occasional
criminals " criminaloids," in order to show precisely
that they have a distinctly abnormal constitution,
though in a less degree than the born criminals, just
as we have the metal and the metalloid, the epileptic
and the epileptoid.
And this, again, is the reason why Lombroso's
criticisms on my description of occasional criminals
are lacking in force. He says, as Benedikt said at
the Congress at Rome, that all criminals are crimi-
nals by birth, so that there is no such thing as an
occasional criminal, in the sense of a 7iormal indi-
vidual casually launched into crime. But I have
not, any more than Garof:ilo, drawn such a picture
of the occasional criminal, for as a matter of fact I
have said precisely the opposite, as indeed Lombroso
himself acknowledges a little further on (ii. 422),
THE DATA OF CRIMINAL ANTHROPOLOGY. 43
namely, that between the born and the occasional
criminal there is only a difference of degree and
modality, as in all the criminal classes.
To cite a few details of criminal psychology, it
may be. stated that of the two physiological condi-
tions of crime, moral insensibility and improvidence,
occasional crime is especially due to the latter, and
inborn and habitual crime to the former. With the
born criminal it is, above all, the lack or the weakness
of moral sense which fails to withstand crime, whereas
with the occasional criminal the moral sense is almost
normal, but inability to realise beforehand the conse-
quences of his act causes him to yield to external
influences.
Every man, however pure and honest he may be,
is conscious now and then of a transitory notion of
some dishonest or criminal action. But with the
honest man, exactly because he is physically and
morally normal, this notion of crime, which simul-
taneously summons up the idea of its grievous con-
sequences, glances off the surface of the normal
conscience, and is a mere flash without the thunder.
With the man who is less normal and has less fore-
thought, the notion dwells, resists the weak repulsion
of a not too vigorous moral sense, and finally prevails;
for, as Victor Hugo says, " Face to face with duty,
to hesitate is to be lost." '
" For instance, I will recall a fact which Morel has related of him-
self, how one day, as he was crossing a bridge in Paris, he saw a
woiking-man gazing into the water, and a homicidal idea flashed across
his mind, so that he had to hurry away, for fear of yielding to the
temptation to throw the man into the water. Again, there is the case
of Humboldt's nurse, who was attacked one day by the tempta'ion to
kill her charge, and ran with him to his mother in order to avoid a
44 CRIMINAL SOCIOLOGY.
The criminal of passion is one who is strong
enough to resist ordinary temptations of no excep-
tional force, to which the occasional criminal would
yield, but who does not resist psychological storms
which indeed are sometimes actually irresistible.
The forms of occasional criminality, which are deter-
mined by these ordinary temptations, are also de-
termined by age, sex, poverty, worldly influences,
influences of moral environment, alcoholism, personal
surroundings, and imitation. Tarde has ably demon-
strated the persistent influence of these conditions on
the actions of men.
In this connection, Lombroso has drawn a clear
distinction between two varieties of occasional crimi-
nals : the " pseudo-criminals," or normal human
beings who commit involuntary offences, or offences
which do not spring from perversity, and do not hurt
society, though they are punishable by law, and
" criminaloids," who commit ordinary offences, but
differ from true criminals for the reasons already
given.
A final observation is necessary in regard to this
anthropological classification of criminals, and it
meets various objections raised by our syllogistic
critics. The difference existing amongst the five
categories is only one of degree, and depends upon
their organic and psychological types, and upon the
influence of physical and social environment.
In every natural classification the differences
disaster. Brierre de Boismont also tells us of a learned man who, at
the sight of a picture in a public gallery, was tempted to cut the can-
vas, and ran away from his impulse to crime.
THB DATA OF CRIMINAL ANTHROPOLOGY, 45
between various groups and varieties are never any-
thing but relative. This deprives them of none of
their theoretical and practical importance, and so it
is with this anthropological classification of criminals.
It follows that, as in natural history we advance by
degrees and shades from the inorganic to the organic
creation, life beginning in the mineral domain with
the laws of crystallisation, so in criminal anthro-
pology we pass by degrees and shades from the mad
to the born criminal, through the links of moral
madmen and epileptics ; and from the born criminal
to the occasional, through the link of the habitual
criminal, who begins by being an occasional criminal,
and ends by acquiring and transmitting to his children
the characteristics of the born criminal. And finally,
we pass from the occasional criminal to the criminal
of passion, who is but a species of the other, and
who further, with his neurotic and epileptoid tem-
perament, not infrequently approximates to the
criminal of unsound mind.
Thus in our everyday life, as in science, we very
often find intermediate types, for complete and
unmixed types are always the most uncommon.
And whilst legislators and judges, in their com-
placent psychology, exact and establish marked
lines of cleavage between the sane and the insane
criminal, experts in psychiatry and anthropology are
often constrained to place a prisoner somewhere
between the mad and the born criminal, or between
the occasional criminal and the normal man.
But it is evident that even when a criminal cannot
be classed precisely in one or the other category, and
5
46 CRIMINAL SOCIOLOGY.
Stands between the two, this is in itself a sufficiently
definite classification, especially from a sociological
point of view. There is consequently no weight in
the objection of those who, basing their argumert
on an abstract and nebulous idea of the criminal in
general, and judging him merely according to the
crime which has been committed, without knowing
his personal characteristics and the circumstances
of his environment, affirm that criminal anthropology
cannot classify all who are detained and accused.
In my experience, however, as a counsel and as an
observer, I have never had any difficulty in classi-
fying all persons detained or condemned for crimes
and offences, by relying upon organic, and especially
upon psychological symptoms.
Thus, as Garofalo recently said, whilst the accepted
criminal science recognises only two terms, the
offence and the punishment, criminal sociology on
the other hand recognises three : the crime, the
criminal, and the means best calculated for social
self-defence. And it may be concluded that up to
this time, science, legislation, and, in a minor degree,
but without any scientific method, the administration
of justice, have judged and punished crime in the
person of the criminal, but that hereafter it will be
necessary to judge the criminal as well as the
crime.
After these general observations on the anthropo-
logical classes of criminals, it might seem necessary
to establish their respective numerical proportions.
But as there is no absolute separation between one
THE DATA OF CRIMINAL ANTHROPOLOGY. 47
and another, and as the frequency of the several
criminal types varies according to the crimes or
offences, natural or otherwise, against persons or
property, no precise account can be rendered of the
criminal world as a whole.
By way of approximation, however, it may be said
in the first place that the classes of mad criminals
and criminals of passion are the least numerous,
and represent something like 5 or 10 per cent, of the
total.
On the other hand, we have seen that born and
habitual criminals are about 40 or 50 per cent. ; so
that the occasional criminals would also be between
40 and 50 per cent.
These are figures which naturally vary according
to the different groups of crime and of criminals
which come under observation, and which cannot be
more accurately determined without a series of
special studies in criminal anthropology, as I said
when answering the objections which have been
raised against the methods of this novel science.
It remains for us, before concluding our first
chapter, to establish a fact of great scientific and
practical value. This is that, after the anthropo-
logical classification which I have maintained for
some ten years past, all who have been devoting
themselves to the subject of crime as regarded from
a biological and social standpoint have recognised
the need for a classification less simple than that of
habitual and occasional criminals, and which will be
more or less complex according to the criterion which
may be adopted.
48 CRIMINAL SOCIOLOGY.
In the first place, the necessity is generally recog-
nised of abandoning the old . arbitrary and algebraic
type in favour of a classification which shall corre-
spond more accurately with the facts of the case.
This classification, originating in observations mad^
within the prison walls, I have extended in the
domain of criminal sociology, wherein it is now
established as a fundamental criterion of legislative
measures which must be taken as a protection
against criminals, as well as a criterion of their
responsibility.
Secondly, the classifications of criminals hitherto
given are not essentially and integrally distinct. It
has been seen, as a matter of fact, that all the classi-
fications which have been set forth amount to a
recognition of four types, the born, the insane, the
occasional criminals, and the criminals of passion ;
and this again resolves itself into the simple and
primitive distinction between occasional and in-
stinctive criminals. The category of criminals by
contracted habit would not be accepted by all
observers, but it corresponds too closely to our daily
experience to stand in need of further proof And on
the other hand I must frankly decline to accept the
authority of those who put forward classifications
more or less symmetrical without having made a
direct study of criminals ; for the experimental
method does not admit systems based on mere
imagination, or on vague recollections of criminal
trials, or on argumentative constructions built up
from the systems of others.
As a matter of fact, apart from the differences
THE DATA OF CRIMINAL ANTHROPOLOGY. 49
of nomenclature, it is evident that the partial dis-
crepancies in this anthropological classification of
criminals are due in some measure to the different
points of view taken by observers. For instance,
the classification of Lacassagne, Joly, Krauss, Badik,
and Marro rest upon a purely descriptive criterion
of the organic or psychological characteristics of
criminals. The classifications of Liszt, Medem, and
Minzloff, on the other hand, depend solely upon the
curative and defensive influence of punishment ; and
those of Foehring and Starke upon certain special
points of view, such as the assistance of released
prisoners, on their tendency to relapse.
My own point of view, on the contrary, has been
general and reproductive, for my classification is
based upon the natural causes of crime, individual,
physical, and social, and to this extent it corresponds
more closely with the theoretical and practical re-
quirements of criminal sociology. If the curative art
of society, like that of individuals, expects from
positive knowledge an indication of remedies, it is
clear that a classification based on the fundamental
causes of crime is best fitted to indicate a social
cure for this manifestation of disease, which is the
essential object of criminal sociology. For, as in
biology one is carried from purely descriptive ana-
tomy to genetic anatomy and physiology, so in socio-
logy we must pass on from purely legal descriptions
of crimes to the genetic knowledge of the criminals
who commit these crimes.
For this reason all the chief classifications of
criminals, as has been seen, may be brought into
50 CRIMINAL SOCIOLOGY.
line with my own, by virtue of the more complete
and fruitful test which has established it. And
thus we have a manifest proof that this classification
actually represents the common and permanent
basis of all the chief anthropological categories of
criminals, whether in regard to their natural causality
and their specific character, or in regard to the
different forms of social self-defence which spring
out of them, and which must be adapted to the
natural causes of crime, and to the principal
criminal types.
But whatever classification may be accepted, we
shall always have, as the fundamental axiom of
criminal anthropology, this variety in the types of
criminals, which must henceforth be indispensable
to all who are theoretically or practically concerned
with crime.
CHAPTER II.
THE DATA OF CRIMINAL STATISTICS.
For moral and social facts, unlike physical and
biological facts, experiment is very difficult, and
frequently even impossible ; observation in this
domain brings the greatest aid to scientific research.
And statistics are amongst the most efficacious
instruments of such observation.
It is natural, therefore, that criminal sociology,
after studying the individual aspect of the natural
genesis of crime, should have recourse to criminal
statistics for the study of the social aspect. Statistical
information in the words of Krohne, "is the first
condition of success in opposing the armies of crime,
for it discharges the same function as the Intelligence
department in war."
From statistics, in fact, the modern idea of the
close relation between offences and the conditions of
social life, in some of its aspects, and above all in
certain particular forms, has most directly sprung.
The science of criminal statistics is to criminal
sociology what histology is to biology, for it exhibits,
in the conditions of the individual elements of
the collective organism, the factors of crime as a
SI
52 CRIMINAL SOCIOLOGY.
social phenomenon. And that not only for scientific
inductions, but also for practical and legislative pur-
poses ; for, as Lord Brougham said at the London
Statistical Congress in i860, " criminal statistics are
for the legislator what the chart and the compass are
for the navigator."
The experimental school, accepting the fundamental
and incontestible idea, apart from its numerical and
optimistic exaggerations, that the statistics of crime
must be considered in regard to the growth and
activity of the population, has opened up an entirely
new channel of fruitful observations, in the classifi-
cation and study of the natural factors of crime.
In my "Studies of Crime in France" (1881) I
arranged in three natural orders the whole series of
causes leading to crime, which had previously been
indicated in a fragmentary and incomplete manner.^
From the consideration that human actions,
whether honest or dishonest, social or anti-social, are
always the outcome of a man's physio-psychical
organism, and of the physical and social atmosphere
which surrounds him, 1 have drawn attention to
* Bentham, in his " Introduction to the Principles of Morals and
Legislation," enumerates the following circumstances as necessary to
be considered in legislation : — temperament, health, strength, physical
imperfections, culture, intellectual faculties, strength of mind, dispo-
sitions, ideas of honour and religion, feelings of sympathy and anti-
pathy, insanity, economic conditions, sex, age, social status, education,
profession, climate, race, government, religious profession.
K' ombroso, in'the second edition of his "Criminal." which embraces
he divisions of his classical work, has made but a rapid enumera-
tion of the principal points : — race, civilisation, poverty, heredity, age,
sex, civil status, profession, education, organic anomalies, sensations,
imitation. Morselli, treating of suicide, has given a fuller classification
of its contributory causes : — worldly or natural influences, ethnical oi
demographical influences, social influences, biopsychical influences.
THE DATA OF CRIMINAL STATISTICS. 53
the anthropological or individual factors of crime, the
physical factors, and the social factors.
The anthropological factors, inherent in the indi-
vidual criminal, are the first condition of crime ; and
they may be divided into three sub-classes, according
as we regard the criminal organically physically, or
socially.
The organic constitution of the criminal comprises
all anomalies of the skull, the brain, the vital organs,
the sensibility, and the reflex activity, and all the
bodily characteristics taken together, such as the
physiognomy, tattooing, and so on.
The mental constitution of the criminal comprises
anomalies of intelligence and feeling, especially of
the moral sense, and the specialities of criminal
writing and slang.
The personal characteristics of the criminal comprise
his purely biological conditions, such as race, age,
sex ; bio-social conditions, such as civil status, pro-
fession, domicile, social rank, instruction, education,
which have hitherto been regarded as almost the
exclusive concern of criminal statistics.
The physical factors of crime are climate, the nature
of the soil, the relative length of day and night, the
seasons, the average temperature, meteoric conditions,
agricultural pursuits.
The social factors comprise the density of popula-
tion ; public opinion, manners and religion ; family
circumstances ; the system of education ; industrial
pursuits ; alcoholism ; economic and political condi-
tions ; public administration, justice and police ; and
in general, legislative, civil and penal institutions.
54 CRIMINAL SOCIOLOGY.
We have here a host of latent causes, commingling
and combining in all parts of the social organism,
which generally escape the notice both of theorists
and of practical men, of criminologists and of legis-
lators.
This classification of the natural factors of crime,
which has indeed been accepted by almost all criminal
anthropologists and sociologists, seems to me more
precise and complete than any other which has been
proposed.
In respect of this classification of the natural factors
of crime, it is necessary to make two final observa-
tions as to the practical results which may be obtained
in the struggle for just laws and against the trans-
gression of them.
In the first place, owing to " the discovery of the
unexpected relation amongst the various forces of
nature, which had previously been thought to be
independent," we must lay stress on this positive
deduction, that we cannot find an adequate reason
either for a single crime or for the aggregate crimi-
nality of a nation if we do not take into account each
and all of the different natural factors, which we may
isolate in the exigencies of our studies, but which
always act together in an indissoluble union.
No crime, whoever commits it, and in whatever
circumstances, can be explained except as the out-
come of individual free-will, or as the natural effect of
natural causes. Since the former of these explana-
tions has no scientific value, it is impossible to give
a scientific explanation of a crime (or indeed of any
THE DATA OF CRIMINAL STATISTICS. 55
Other action of man or brute) unless it is considered
as the product of a particular organic and psychical
constitution, acting in a particular physical and social
environment.
Therefore it is far from being exact to assert that
the positive criminal school reduces crime to a purely
and exclusively anthropological phenomenon. As
a matter of fact, this school has always from the
beginning maintained that crime is the effect of
anthropological, physical, and social conditions,
which evolve it by their simultaneous and insepar-
able operation. And if inquiries into biological
conditions have been more abundant and more con-
spicuous by their novelty, this in no way contradicts
the fundamental conclusion of criminal sociology.
That being stated, we have still to examine the
relative value of these three classes of conditions in
the natural evolution of crime.
It seems to me that this question is generally
stated inaccurately, and also that it cannot be an-
swered absolutely, and in a word.
It is generally stated inaccurately ; because they
who think, for instance, that crime is nothing else
than a purely and exclusively social phenomenon in
the evolution of which the organic and psychical
anomalies of the criminal have had no part, ignore
more or less consciously the universal correlation of
natural forces, and forget that, in regard to any
phenomenon whatsoever, it is impossible to set an
absolute limit to the network of its causes, immediate
and remote, direct and indirect.
To put this question in an arbitrary sense would
56 CRIMINAL SOCIOLOGY.
be like asking if a mammal is the product of its
lungs, or its heart, or its stomach, or of vegetable
constituents, or of the atmosphere ; whereas each of
these conditions, internal and external, is necessary
to the life of the animal.
In fact, if crime were the exclusive product of
the social environment, how could one explain
the familiar fact that in the same social environ-
ment, and in identical circumstances of poverty,
abandonment, lack of education, sixty per cent,
do not commit crimes, and, of the other forty, five
prefer suicide, five go mad, five simply become
beggars or tramps not dangerous to society, whilst
the remaining twenty-five actually commit crimes .''
And amongst the latter, whilst some go no further
than theft without violence, why do others commit
theft with violence, and even kill their victim out-
right, before he offers resistance, or threatens them,
or calls for help, and this with no other object than
gain ?
The secondary differences of social condition,
which may be observed even amongst the members
of a single family, rotting in one of the slums of our
great towns, or amongst those who are surrounded by
the temptations of money or power, or the like, are
clearly not enough in themselves to explain the vast
differences in the actions which grow out of them,
varying from honesty under the greatest discourage-
ment to suicide and murder.
The question, therefore, must be asked in a relative
sense altogether, and we must inquire which of
the three kinds of natural causes of crime has a
THE DATA OF CRIMINAL STATISTICS. 57
greater or less influence in determining each parti-
cular crime at any given moment in the individual
and social life.
No clear answer of general application can be given
to this question, for the relative influence of the
anthropological, physical, and social conditions varies
with the psychological and social characteristics of
each offence against the law.
For instance, if we consider the three great classes
of crimes against the person, against property, and
against personal purity, it is evident that each class
of determining causes, but especially the biological
and social conditions, have a distinctly different in-
fluence in evolving homicide, theft, or indecent
assaults. And so it is in every category of crimes.
The undeniable influence of social conditions, and
still more of economic conditions, in leading up to
the commission of theft, is far inferior in the genesis
of homicides and indecent assaults. And similarly,
in each category of crimes, the influence of the deter-
mining conditions varies greatly according to the
special forms of crime.
Certain casual homicides are plainly the result of
social conditions (gambling, drink, public opinion,
&c.) in a much higher degree than homicides which
for the most part spring from brutality, from the
moral insensibility ot individuals, or from their
psycho-pathological conditions, corresponding to ab-
normal organic conditions.
In like manner, certain indecent assaults, incests,
&c., are largely the outcome of social environment,
which, condemning a number of persons to live in
58 CRIMINAL SOCIOLOGY,
hovels without air or h'ght, with a promiscuity of sex
between parents and children such as obtains amongst
the brutes, effaces or deadens all normal sense of
modesty. On the other hand, there are cases of rape
and the like which are mostly due to the biological
condition of the individual, either in manifest forms
of sexual disease or, less manifest though none the
less actual, ot biological anomaly.
For thefts, again, whilst occasional simple thefts
are largely the effect of social and economical con-
ditions, this influence becomes feebler in comparison
with impulses due to the personal constitution,
organic and psychical, as, for instance, in the case
of thefts with violence, and especially of murder for
the purpose of robbery, which scoundrels of the
" swell-mob " so frequently commit in cold blood.
The same observation applies to the conditions of
physical environment. For instance, if the regular
increase of crimes against property in winter (and, as
I showed for the first time from French statistics, in
years when the cold is greatest) is only an indirect
result, through the social and economic influences of
temperature, the increase of crimes of passion and
indecent assaults during the months and years when
the temperature is highest is only a direct effect of
temperature, even for such as, by their biological
conditions, offer the feeblest resistance to these
influences.
Meanwhile, a last objection has been raised against
the conclusions which I have maintained for many
years past.
It has been said that, even if we admit that for
THE DATA OF CRIMINAL STATISTICS. $9
certain crimes and criminals the greatest influence
must be recognised as due to the physical and
psychical conditions of the individual, extending
from slightly manifested anomalies of an anthropo-
logical character to the most accentuated patholo-
gical condition, this does not exclude the possibility
of a crime being due to social conditions. In fact,
it is said the anomalies of the individual are in their
turn only an effect of a debasing social environment,
which condemns its victims to organic and psychical
degeneration.
This objection is sound enough if it be taken in a
relative sense, but groundless if it be insisted on
absolutely.
It must be considered, in the first place, that the
distinctions of cause and effect are only relative, for
every effect has its cause, and vice versd ; so that if
wretchedness, material and moral, is a cause of de-
generation, degeneration itself, like biological anomaly,
is a cause of wretchedness. And in this sense the
question would be simply metaphysical, like the
famous Byzantine discussions as to whether there
was originally an %^% before a hen or a hen before
an &gg.
And, in fact, when it was said, in regard to criminal
geography, that the extent and quality of crime in
such and such a province, instead of being the effect
of biological conditions (race, &c.) and physical con-
ditions (climate, soil, &c.), were but the effect of social
and economic conditions (of rural and industrial pur-
suits, and the like), I was able to make a very simple
reply. For, apart even from statistical proofs, if the
6o CRIMINAL SOCIOLOGY.
social conditions of such and such a province, which
have an unquestionable influence, are really the abso-
lute and exclusive cause of crime, we may still ask
whether these social conditions of the province are
not themselves the effect of the ethnical qualities of
energy, intelligence, and so forth, in its inhabitants,
and of the more or less favourable conditions of the
climate and the soil.
But it may also be observed, more precisely, that
even apart from strongly marked and conspicuous
pathological conditions, which meanwhile assert them-
selves amongst the biological factors of crime, there is
a very great number of these cases in which it cannot
actually be said that the bio-psychical anomalies of
the criminal are the effect of a physically and morally
poisonous environment.
In every family in which there are several children,
we find (in spite of identical surroundings and
conditions of a favourable kind, and suitable methods
of training and education), individuals who differ
intellectually from the cradle ; we also find in the
degree or in the kind of their talent, the same indi-
viduals also differ from their cradle in physical and
moral constitution. And though the phenomenon
may only be manifest in the less numerous cases of
types which are markedly normal or abnormal, it is
none the less true also in the more numerous cases of
ordinary types.
In this connection I may observe that physical and
social conditions have a greater or a less influence in
proportion as the physical and psychical constitution
of the individual is more or less sound and vigorous.
THE DATA OF CRIMINAL STATISTICS. 6l
The practical conclusion, therefore, of these general
observations on the natural genesis of crime is this :
Every crime is the result of individual physical and
social conditions ; and, since these conditions have
a more or less dominant influence for various forms
of crime, the most certain and profitable mode of
defence which society can employ against criminality
is of a twofold character, and both modes ought to be
employed and brought into action simultaneously —
in the first place, the amelioration of the social con-
ditions, as a natural preventive of crime, in the nature
of a substitute for punishment ; and, secondly,
measures of perpetual or temporary elimination of
criminals, according as the influence of biological con-
ditions in the evolution of crime is all but absolute,
or more or less great, and more or less curable.
As a matter of fact, when we follow the periodic
variations of crime, with its measured growth and
decrease, we cannot fail to conclude that these con-
stant and constantly occurring variations depend
upon a corresponding variation of anthropological
and physical factors. For, whilst criminal statistics
are far from showing the regularity which Quetelct
claimed with much exaggeration, the proportional
figures in regard to the bearings of age, sex, calling,
&c., upon criminality exhibit very insignificant varia-
tions from year to year. And as for the physical
factors, if marked variations are explicable at some
given period, it is nevertheless evident that neither
climate, nor the nature of the soil, nor atmospheric
conditions, nor the seasons, nor the temperature of
different years could have undergone in the last half-
6
62 CRIMINAL SOCIOLOGY.
century such constant and repeated variations as to
correspond to those waves .of criminaHty which we
shall presently exhibit in almost every nation of
Europe.
Thus it is to the social factors that we must chiefly
attribute the periodic variations of criminality. For
even the variations which can be detected in certain
anthropological factors, like the influences of age
and sex upon crime, and the more or less marked
outbreak of anti-social and pathological tendencies,
depend in their turn upon social factors, such as the
protection accorded to abandoned infants, the par-
ticipation of women in non-domestic, commercial
and industrial life, preventive and repressive mea-
sures, and the like. And again, since the social
factors have special import in occasional crime, and
crime by acquired habit, and since these are the most
numerous sections of crime as a whole, it is clear
that the periodic movement of crime must be attri-
buted in the main to the social factors. So true is
this, that, as we shall presently see, the gravest
crimes, especially against persons, precisely because
they mostly indicate congenital criminality, follow
a more steady and regular movement than these
slighter but far more frequent offences against
property, public order, and persons, of a more
occasional character, and that, as microbes of the
world of crime, they are the more direct outcome of
social environment.
It is therefore another point in favour of the experi-
mental school that it has insisted on this sociological
aspect of the problem of criminality, by showing
THE DATA OF CRIMINAL STATISTICS. 63
legislators, outside the limits of their punitive
remedies, as easy as they are illusory, how they
might, as far as circumstances will permit, apply a
genuine social remedy to crime.
After these preliminary observations, it is time
that we should take a closer view of the general
statistics of the movement of crime in Europe, so
far as they may be followed in official figures.
Whilst we have no intention of offering a body of
comparative statistics, but only of giving a simple
indication of the periodic movement of crime, these
data, which do not render it easy to compare one
country with another, though they are intimately
related so far as each particular country is concerned,
suffice to exhibit a few facts of some considerable
importance.
The most conspicuous general phenomenon in the
countries here included is ^/le steadiness of the gravest
forms of crime side by side with the continuoiis increase
of slighter offences, especially in the countries which
show a long series of figures, such as France,
England, and Belgium. This proceeds mainly from
the progressive accumulation of offences against
special enactments, which are constantly being added
to the original basis of the penal code ; but it is
also a symptom of an actual transformation in the
criminal activity of the century, from whence,
through the gradual substitution of crimes against
property in the great towns for crimes against the
person in earlier centuries, we have a wider extension
together with a lower degree of intensity.
64 CRIMINAL SOCIOLOGY.
Another characteristic common to the countries
under observation is that, whilst the graver crimes
against property show a somewhat marked diminution,
crimes against persons, on the other hand, show
more steadiness, either of regularity, as in France
and Belgium, or of increase, as in England, and
still more in Germany. But this phenomenon in
the case of crimes against the person is in actual
correspondence with criminal activity arising from
an increase of population. On the other hand —
apart from the transformation of crimes of violence
into crimes of craft and fraud, due to the increase
of movable property — the decrease of offences against
property is no more than the manifest effect of
an artificial change of judicial procedure, summary
proceedings taking the place of trial by jury.
An alternation, which is not invalidated by excep-
tions here and there, has been observed in the
criminality of different countries, in the periodic
movement of crimes and offences against property
and those against the person, of such a kind that
years of increase in the former usually answer to
a diminution in the latter, and vice versA. The
principal factors in the annual increase of theft, such
as scarcity and extremes of weather, cause a corre-
sponding diminution of violent assaults and bodily
harm, of homicides and indecent assaults, and vice
versd. On the other hand, offences against property,
which are very numerous, contribute most of all to
the total of annual crime ; so that the maximum of
1880 in Italy, as well as in France, Belgium and
Austria, is especially due to the great severity of the
THE DATA OF CRIMINAL STATISTICS. 65
winter of 1879-80, which in Italy coincided with an
agricultural crisis, attested by the very high price of
corn. Whereas from 1881 to 1885 there were very
mild winters, with more abundant harvests, and
from 1886 a greater extreme of cold and a more
acute economic crisis.
The general tendency of these periodic oscil-
lations of crime in Italy, as in other European
countries, is nevertheless far more towards increase
than towards decrease. This is also shown by the
proportional triennial averages of crimes and offences
placed on record, and of persons condemned to
imprisonment.
In the movement of crime in each country it is
necessary to distinguish special oscillations, more or
less prolonged, of increase or decrease, from its
general and permanent tendency. The latter is
determined by the fundamental conditions of each
nation, physical and social, apart from the purely
artificial section of transgressions brought into exis-
tence by new laws. The special oscillations, on the
other hand, are determined by the annual variations
in this or that factor of the more numerous offences ;
that is to say, by abundance or scantiness of the
harvests, by the annual variations of temperature,
by industrial and political crises, and the like.
The oblivion of this marked distinction, coupled
with the prejudices of the scientific schools, and even
of political parties, leads to some curious dis-
agreements, and to lively discussions on the results
of criminal statistics. For on one side the champions
of the classical school plainly see that the persistent
66 CRIMINAL SOCIOLOGY,
increase of crimes and offences amounts to a proof of
that breakdown of penal systems, practical and theo-
retical, which have hitherto been applied — as was
admitted by Holtzendorff. And on the other hand,
the increase of crimes is denied or affirmed for the
purpose of supporting or attacking some particular
ministry. For, in parliaments more than elsewhere,
there is always a deep-seated and vivacious prejudice,
a kind of social artificiality, which causes men to think
that the condition of States, moral and economic, is
fundamentally determined far more by the action of
this or that government than by natural factors,
which are mainly superior to and outside of govern-
ments and politicians.
And this is why in Italy there has been much dis-
cussion of late, in scientific publications, at the sittings
of the Central Commission of Judicial Statistics, and
even in Parliament, as to whether crime was increasing
or decreasing.
Beltrani-Scalia and Lombroso almost simultaneously
called attention to the growth of Italian crime, and they
were succeeded by various adherents of the positive
school, such as Ferri, Garofalo, Pavia, Pugliese, Guidi,
Bournet, Barzilai, and Rossi, who produced evidence
that the general tendency of crime in Italy was to
increase, and that the diminutions observed after 1880
were mere transitory oscillations ; and after 1886 they
were justified by facts.
On the other hand, official returns of criminal
statistics, and a majority of the members of the
Central Commission, when pursuing an inquiry
suggested by myself into Italian crime since 1873
THE DATA OF CRIMINAL STATISTICS. 67
— for previously to this date there are no criminal
statistics in Italy except for 1853 and 1869-70 —
came to the conclusion that there was a tendency
towards a diminution of crime. But their decision
was formed from an entirely partial standpoint, which
they had taken up in the exigency ot polemical dis-
cussion. They compared, in fact, the years just con-
cluded, 1 88 1-5, with 1880, and thus it naturally
followed that after a maximum they had a relative
decrease. And it was only this ingenious comparison
which gave an appearance of actual proof to their
optimistic assertions ; for when a fever is at forty
degrees, the fall of even half a degree is very im-
portant. They paid special attention to the so-called
high criminality, which is tried by the Assize courts,
and is actually decreasing, though by the purely
artificial effect of more and more effective measures
of correction. But I have always maintained, and
I have the support of M. Oettingen, that we cannot
separate crimes and offences tried by the Assizes
from those tried by the Tribunals, for there is only
a difference of degree between them, as is clear in
regard to theft, assaults and wounding, forgery and
the like.
It is a curious fact that similar illusions have
existed in all countries through the same causes and
prejudices which have been mentioned above. In
France, for instance, we often find that the keepers
of the seals, reporting on volumes of the excellent
and valuable series of criminal statistics since the
year 1826, occasionally remark on these oscillatory
diminutions, and make a point of treating them as
68 CRIMINAL SOCIOLOGY.
signs of a constant and general tendency, which
succeeding years have always contradicted.
In France also, the same controversy has been kept
up since 1840, with the same polemical artifices as
were employed more recently in Italy, on the question
whether crime has increased or decreased. Dufau,
Beranger, Berrzat de St. Prix, and Legoyt affirmed
that it had diminished since 1826, against the true
opinion of de Metz, Dupin, Chassan, Mesuard, and
Fayet, the last of whom quotes the others in one of
his essays on criminal statistics, now undeservedly
forgotten, though they abound in striking and pro-
found observation.
But, as for France in those days, so for Italy to-day,
the statistics of succeeding years quickly proved that
what official optimism and national self-complacency
spoke of as pessimism on our part was but a con-
scientious inference from lamentable facts, established
in every country by the influence of civilisation on
crime, which I have described in preceding pages.
After these general statements we ought logically
to watch the periodic movement of each leading
category of crimes and offences in each division of
the country ; for not all crimes, nor all districts,
pursue the same course from year to year. But as
this inquiry is impossible in the present work, we
may pass on to the general figures for other European
countries.
France.
1826-8. 1885-7.
Police Contraventions 100 391 \
Oflences 100 397 1 • £.
Crimes against the person 100 ^g^n 01 years.
property 100
4U
THE DATA OF CRIMINAL STATISTICS. 69
Belgium.
1850-8.
Tried by the Correctional Tribunals,
for crimes against the person ... loo
,, property 100
1840-2.
Tried by the Tribunals for " Offences " 100
Tried at Assizes, crimes against the person 100
,t n property loo
England.
1857-9.
100
Tried summarily, for offences
1835-7-
Crimmal cases, against the person ... 100
,, against property, and for
circulation of false money 100
Ireland.
1864-6.
Tried summarily 100
Crimes against the person... 100
„ property, and false money 100
Prussia.
Contraventions and " vols de bois "
Crimes and offences
1854-6.
icx>
100
Germany.
1882-4.
Crimes and offences against public order 100
„ „ the person 100
„ „ property ... icx>
Austria.
Prisoners condemned for crimes ...
,, ,, offences ...
Spain.
Tried for crimes and offences
,j contraventions ...
1867-9.
100
ICX)
i88v4.
ICO
ICX)
1883-s.
Jgj in 36 years.
1883-5.
260
65
21)
in 46 years
1884-6.
176 in 30 years.
1884-6.
143)
55J
in 55 years.
1886-8.
95).
S7^m 25 years.
52 J
1876-8.
I34}"» 25 years.
1885-7.
iioj
116 Un 6 years.
95)
1884-6.
^^^1 in 20 years.
1886-7.
JijjinS years.
The most constant general fact shown by these
data is in all cases the very remarkable increase of
slighter delinquencies, side by side with constancy or
70 CRIMINAL SOCIOLOGY.
slight diminution in crimes against the person, and a
large diminution in crime against property. This is
seen in France, England, Belgium, whilst there is an
increase both of crimes and offences in Austria.
Behind the general fact, however, we must dis-
tinguish between the actual and the apparent.
On the one hand, the decrease of more serious
crime against property is simply due to prisoners
electing to be sentenced by the inferior court, which
is at the discretion of the Tribunals in France, but
legally established in Belgium, by the laws of 1838
and 1848, and in England by the Acts of 1856 and
1878 — an election of the slighter but more certain
punishment of the magistrates in preference to going
before a jury. Indeed, crimes against the person, in
which there is less power of election, do not exhibit
so marked a decrease ; and accordingly we see that
in Belgium the increase of " correctionalised " crimes
is due far more to crimes against property (62 per
cent, in 36 years) than to those against the person
(9 per cent).
On the other hand, the growth of slighter delin-
quency is partly the effect of special enactments,
which are constantly creating new infractions, offences
or contraventions. For France may be mentioned
the law of 1832 on eluding supervision; that of 1844
on the game laws, that of 1857 on the false descrip-
tion of goods for sale, of 1845 on railway offences,
of 1849 on the expulsion of refugees, of 1873 on
drunkenness, and of 1874 on requisition of horses.
I dealt with the statistical results of these laws, and
with the influence of the increasing number of police
THE DATA OF CRIMINAL STATISTICS. 7 1
agents, in my " Studies on Criminality in France "
(Rome, 1881) ; and I will here add only a single
observation. If it is true, as M. Joly says, that other
laws, passed since 1826, have extinguished a few
offences, or at least have diminished their frequency
under less severe regulations, yet it is also true that
the new infractions created in the past half-century
show far higher numbers than those of the infractions
which have been extinguished or rendered less easy.
So that amongst the 297 per cent, of increase on
the offences tried in France between 1826 and 1887,
the element due to legal creation of new infractions
must not be ignored.
It cannot, however, be denied that for certain more
frequent offences we have a real and very noteworthy
increase, apart from any legislative or statistical cause
of disturbance.
The same observation may be made in regard to
England. There also the increase of y6 per cent,
during thirty years of offences tried summarily is
due in part to new infractions, created by special
legislation, and especially by the Education Act of
1873, under which there were more than forty
thousand infractions in 1878, and more than sixty-
five thousand in 1886.
In regard to this delinquency in England (wherein
are included, over and above real offences, certain
infractions corresponding to the police contraventions
of the Italian, French, Belgian and Austrian codes) it
is to be observed that the increase of y6 per cent,
in thirty years is due rather to contraventions than
to offences. And this would establish a remarkable
72 CRIMINAL SOCIOLOGY,
difference between the variations of delinquency in
England and in France.
If we analyse the record of infractions tried sum-
marily in England, we find that contraventions of the
law in respect of drunkenness account for most of
this increase (from 82,196 in 1861 to 183,221 in 1885
and 165,139 in 1886). On the other hand, offences
against the person (assaults) and against property
(stealing, larceny, malicious offences) have not shown
so large an increase.
In fact, if we compare the variations in assaults
and thefts in France and England, we have the
following figures: —
England.
1861-3. 1879-81.
Prisoners tried summarily for assaults 100 102
Ditto for stealing, larceny, and malicious
offences loo lio
France.
Cases tried by the Tribunals :
For assault and wounding ICX> 134
For simple theft loo I16
So that in England not only the total delinquency,
but more especially the commoner offences against
the person and against property show a slighter
increase than that which has been established for
the same period in France. Whilst we do not
overlook the greater increase of crimes against the
person in England (coinciding, of course, with the
doubling of the population in fifty-five years), this
fact seems to me to prove the salutary influence
of English organisations against certain social factors
which lead up to delinquency (such as the care of
THE DATA OF CRIMINAL STATISTICS. 73
foundlings, the guardianship of the poor, and so
forth), notwithstanding the great development of
economic activity, which is assuredly in no way
inferior to that of France. The figures strengthen
my conclusions as to the social factors of crime,
and refute the optimistic theory of Poletti,
But the actual participation of each country in the
general increase of crime in Europe is determined by
other causes, outside of the artificial influences of
different codes of law. And the most general and
constant of these causes, in all the various physical
and social environments, is the annual increase of
population, which, by adding to the density of the
inhabitants of each country, multiplies their material
and legal relations to one another, and, consequently,
the objective and subjective constituents of crime.
Taking the official Italian figures, which are also
relied on by M. Levasseur, we find, for the periods
corresponding to the variations of criminality, the
following rates of increase in the population of the
different countries. Ireland shows a decrease, owing
to emigration.
Increase.
Italy .► 22,104,7891111863 — 30,947,3061111889 40 per cent.
... 27,165,553 in 1873— 30,565,188 in 1888 • 12 „
France ... 31,858,937 in 1826 — 38,218,903 in 1887 20 per cent.
Belgium ... 4,072,619 in 1840— 5,583,278 in 1885 44 ,,
Prussia ..." 21,046,984 in 1852 — 26,614,428 in 1878 26 „
Germany 45,717,000 in 1882 — 47,540,000 in 1887 4 „
England... 13,896,797 in 1831 — 27,870,586 in 1886 loi „
,, . ... 20,066,224 in 1861 — 27,870,586 in 1886 39 „
Austria ... 20,217,531 in 1869 — 23,070,688 in 1886 14 „
Ireland ... 5,798,967 in 186 1 — 4,777,545 in 1888 dec. 17 „
It must, however, be observed, with regard to this
increase of the population, firstly that it tells as a factor
74 CRIMINAL SOCIOLOGY.
of criminality only in so far as it is not neutralised,
wholly or in part, by other influences, mainly social,
which prevent crime or render it less grave. Secondly,
it is not right merely to compare the proportional
rates of increase in the population with those of crime,
as was done for instance by M. Bodio, who said that
in Italy, from 1873 to 1883, "since the population
had increased by 7.5 per cent., crime might have
increased during the same time by 7.5 per cent., with-
out its being fair to say that it had actually increased."
In point of fact, as M. Rossi remarked, since in Italy,
and almost all the European States, the growth of
the population is due to the excess of births over
deaths (for emigration is more numerous than im-
migration), it is evident that, when we confine our
attention to short periods, the addition to the popu
lation, consisting of children under ten or twelve
years, does not increase crime in an appreciable
degree. The deaths, on the other hand, must be
subtracted from all stages of human life, but espe-
cially from the number of those who can and do
commit crimes and offences.
Now, as we cannot in this place go into detail,
I must confine myself to the statement of a few
characteristic facts, as illustrated by European crime.
Thus we perceive the influence of the great famine
of 1846-7 on crimes against property in France and
Belgium ; the rapid oscillations of crime in Ireland,
indicating the unstable political and social conditions
of the country ; and the parallel movements of crime
in France and Prussia. We see, indeed, a constant
diminution of crime for the period between i860 and
THE DATA OF CRIMINAL STATISTICS. 75
1870, followed (after the statistical disturbance of the
terrible year 1 870-1) by a period of serious and con-
tinued increase of crime, resulting from social and
economic conditions, as shown especially by the
increase of vagrancy and .theft since 1875.
All these general facts go to prove the close
and intimate connection between crime and the
aggregate of its various constituents. So that, with-
out pursuing more detailed inquiries into certain
social factors of crime, which are capable of statis-
tical enumeration, such as the increase in the number
of the police, the abundance or scarcity ot corn and
wine, the spread of drunkenness, family circumstances,
increase of personal possessions, the facility or other-
wise of the settlement of disputes, commercial and
industrial crises, the rate of wages, the variation from
year to year of the general conditions of existence,
and so forth, coincident with the development of
education, encouragements to thrift and the organi-
sation of charity, we must now proceed to draw from
these statistical data the most important conclusions
of criminal sociology.
76 CRIMINAL SOCIOLOGY.
I.
Criminal statistics show that crime increases in the
aggregate, with more or less notable oscillations from
year to year, rising or falling in successive waves.
Thus it is evident that the level of criminality in any
one year is determined by the different conditions of
the physical and social environment, combined with
the hereditary tendencies and occasional impulses of
the individual, in obedience to a law which I have
called, in analogy with chemical phenomena, i/ie law
of criminal saturation.
Just as in a given volume of water, at a given
temperature, we find a 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 conditions of the individual, we find the
commission of a fixed number of crimes.
Our ignorance of many physical and psychical laws
and of innumerable conditions of fact, will prevent us
from obtaining a precise view of this level of crimin-
ality. But none the less is it the necessary and inevit-
able result of a given physical and social environment.
Statistics show us, indeed, that the variations of this
environment are always attended by consequential
and proportional variations of crime. In France, for
instance (and the observation will be found to apply
to every country which possesses an extended series
of criminal statistics), the number of crimes against
the person varies but little in sixty-two years. The
same thing holds good for England and Belgium,
because their special environment is also less variable,
THE DATA OF CRIMINAL STATISTICS. 77
by reason that hereditary dispositions and human
passions cannot vary profoundly or frequently, except
under the influence of exceptional disturbances of
the weather, or of social conditions. In fact, the
more serious variations in respect of crimes against
the person in France have taken place either during
political revolutions, or in years of excessive heat, or
of exceptional abundance of meat, grain, and wine.
This is illustrated by the exceptional increase of
crime from 1849 to 1852. Minor offences against
the person, on the contrary, which are more occa-
sional, assaults and wounding, for example, vary
in the main, as to their annual oscillations, with
the abundance of the wine harvest, whilst in their
oscillations from month to month they display a
characteristic increase during the vintage periods,
from June to December, notwithstanding the constant
diminution of other offences and crimes against the
person.
On the other hand, crimes against property, and
still more offences against property, show wide oscil-
lations on account of the variability of the special
environment, which is almost always in a condition of
unstable equilibrium, as in periods of scarcity, and of
commercial, financial and industrial crises, and so
forth, whilst they are subject also to the influence
of the physical environment. Crimes and offences
against property display extraordinary increases in
the severest winter seasons, and diminutions in milder
winters.
And this correspondence between the more general,
powerful, and variable physical and social factors of
7
78 CRIMINAL SOCIOLOGY.
crime, as well as its more characteristic manifestations
such as thefts, wounding, and indecent assaults, is so
constant and so direct that, when I was studying the
annual movement of criminality in France, and per-
ceived some extraordinary oscillation in the crimes
and offences, I foresaw that in the annals of the year
I should find mention of an agricultural or political
crisis, or an exceptional winter or summer in the
records of the weather. So that with a single column
of a table of criminal statistics I was able to recon-
struct the historical condition of a country in its more
salient features. In this way psychological experiment
again confirmed the truth of the law of criminal
saturation.
Not only so, but it may be added that as, in
chemistry, over and above the normal saturation we
find that an increased temperature of the liquid enve-
lopes an exceptional super-saturation, so in criminal
sociology, in addition to the ordinary saturation we
are sometimes aware of an excess of criminal satura-
tion, due to the exceptional conditions of the social
environment.
Indeed it is to be observed not only that the main
and typical criminality has a sort of reflex criminality
depending upon it, but also that an increase of more
serious or more frequent crimes induces a crop of re-
sistance to and assaults upon the guardians of public
order, together with false witness, insults, avoidance of
supervision, absconding, and the like. Certain crimes
and offences also have their complementary offences,
which from being consequences become in their turn
the causes of new offences. Thus concealment and
THE DATA OF CRIMINAL STATISTICS. 79
purchase of stolen goods increase simultaneously with
theft ; homicide and wounding lead to the illegal
carrying of arms ; adultery and abusive language to
duels, and so forth.
Beyond this there are sundry kinds of excessive
criminal saturations which are exceptional, and
therefore transitory. Ireland and Russia present us
with conspicuous examples in their political and
social crimes ; and similarly America, during election
contests. So in France before and after December 2
185 1, the harbouring of criminals, which in no other
quadrennial period from 1826 to 1887 exceeds a record
of fifty, rises in 1850-53 as high as 239. So during
the famine of 1847, theft of grain rises in France to
forty-two in a single year, whilst for half a century it
barely reaches a total of seventy-five. It is notorious,
again, that in years of dear provisions, or severe
winters, a large number of thefts and petty offences
are committed for the sole object of securing mainten-
ance within the prison walls. And in this connection
I have observed in France that other offences against
property decrease during a famine, by an analogous
psychological motive, thus presenting a sort of
statistical paradox. Thus, for example, I have found
that as oidium and phylloxera are more effective than
severe punishments in diminishing the number of
assaults and cases of unlawful wounding, so famine
succeeds better than the strongest bars, or dogs kept
loose in the prison yards, in preventing the escape of
prisoners, who at such times are detained by the
advantage of being supported at the public expense.
For a parallel reason in 1847, a famine year, whilst
80 CRIMINAL SOCIOLOGY.
all crimes and offences against property increased in
an extraordinary fashion, only the crimes of theft and
breach of confidence by household servants showed a
characteristic decrease, because such persons were
deterred by the fear of being dismissed by their
employers during the time of distress. The figures
are as follows : —
France (Assizes).
1844.
1845.
1846.
1847.
Crimes against property
3.767
3.396
3.581
4.235
Breach of confidence by household
servants
136
128
168
104
Thefts by the same
I.OOI
874
924
896
M. Chaussinand adds, by way of confirmation of my
statement that during economic crises, such as famine
and high prices of grain, the number of cases of escape
from justice also decreases, /or " thieves and tramps
prefer arrest, in order to escape from the misery which
afflicts them outside the prison walls."
Two fundamental conclusions of criminal sociology
may be drawn from this law of criminal saturation.
The first is that it is incorrect to assert a mechanical
regularity of crime, which from Quetelet's time has
been much exaggerated. There has been a too literal
insistance on his famous declaration that *' the budget
of crime is an annual taxation paid with more precise-
ness than any other " ; and that it is possible to calcu-
late beforehand how many homicides, poisoners, and
forgers we shall have, because " crimes are generated
every year in the same number, with the same punish-
ments, in the same proportions." And one constantly
meets with this echo of the statisticians, that " from
year to year crimes against the person vary at the
THE DATA OF CRIMINAL STATISTICS. 8 1
most by one in twenty-five, and those against property
by one in fifty"; or, again, that there is "a law of
limitation in crime, which does not vary by more than
one in ten."
This opinion, originated by Quetelet and other
statisticians after an inquiry confined to the more
serious crimes, and to a very short succession of years,
has already been refuted, in part by Maury and
Rhenisch, and more plainly by Aberdare, Mayr,
Messedaglia and Minzlofif.
In fact, if the level of criminality is of necessity
determined by the physical and social environment,
how could it remain constant in spite of the continual
variations, sometimes very considerable, of this same
environment ? That which does remain fixed is the
proportion between a given environment and the
number of crimes : and this is precisely the law of
criminal saturation. But the statistics of criminality
will never be constant to one rule from year to year.
There will be a dynamical but not a statical regularity.
Thus the element of fixity in criminal sociology
consists in asserting, not the fatality or predestination
of human actions, including crimes, but only their
necessary dependence upon their natural causes, and
therewith the possibility of modifying effects by
modifying the activity of these causes. And, indeed,
even Quetelet himself recognised this when he said,
"If .we change the social order we shall see an
immediate change in the facts which have been so
constantly reproduced. Statisticians will then have
to consider whether the changes have been useful
or injurious. These studies therefore show how
Hz CRIMINAL SOCIOLOGY,
important is the mission of the legislator, and how
responsible he is in his own sphere for all the
phenomena of the social order."
The second consequence of the law of criminal
saturation, one of great theoretical importance, is that
the penalties hitherto regarded, save for a few platonic
declarations, as the best remedies for crime, are less
effectual than they are supposed to be. For crimes
and offences increase and diminish by a combination
of other causes, which are far from being identical
with the punishments lightly written out by legislators
and awarded by judges.
History affords us various impressive examples.
The Roman Empire, when society had fallen into
extreme corruption, recalling many symptoms of our
own epoch, vainly promulgated laws which visited
celibacy, adultery, and incest — " venus prodigiosa " —
with " the vengeance of the sword and punishments
of the utmost severity." Dio Cassius (" Hist Rom.,"
Ixxvi. 1 6) says that in the city of Rome alone, after the
law of Septimus Severus, there were three thousand
charges of adultery. But the stringent laws against
these crimes continued to the days of Justinian, which
shows that the crimes had not been checked ; and, as
Gibbon says (" Decline and Fall," ch. 44), the
Scatinian law against " venus nefanda " had fallen
into abeyance through lapse of time and the multi-
tude of offenders. Yet we see in our own days, as in
France, that there are some who would oppose celi-
bacy with no other remedy than a law passed for the
purpose.
Since mediaeval times the increasing gentleness of
THE DATA OF CRIMINAL STATISTICS. 83
manners has caused a diminution of crimes of blood,
once so numerous that there was need of sundry
"truces" and "peaces," notwithstanding the harsh
penalties of previous centuries. And Du Boys
called Cettes simple because, after giving a table ot
shocking punishments in the Germany of his day
(the fifteenth century), he marvelled that all these
pains and torments had not prevented the increase
of crimes.
Imperial Rome deluded herself with the idea that
she could stamp out Christianity with punishments
and tortures, which, however, only seemed to fan the
flame. In the same way Catholic Europe hoped to
extinguish Protestantism by means of vindictive
persecution, and only produced the opposite effect,
as always happens. If the Reformed faith does
not strike root in Italy, France, and Spain, that must
be explained by psychological reasons proper to
those nations, independently of the stake and of
massacres, for it did not strike root even when
religious belief was liberated from its fetters. This
does not prevent all governments in every land from
continuing to believe that, in order to arrest the
spread of certain political or social doctrines, there
is nothing better than to pass exceptional penal laws,
forgetting that, with ideas and prejudices just as with
steam, compression increases the expansive force.
Popular education has swept away the so-called
crimes of magic and witchcraft, though they had
withstood the most savage punishments of antiquity
and mediaeval times.
Blasphemy, in spite of the slitting of the nose.
84 CRIMINAL SOCIOLOGY,
tongue, and lips, enacted by the penal laws, and
continued in France from Louis XI. to Louis XV.,
was very common in the middle ages, being (like
witchcraft, trances, and self-immurement) a patho-
logical or abnormal manifestation of religious emotion,
which in those times had an extraordinary develop-
ment. And the habit of blasphemy diminished
under the psychological and social evolution of our
own days, precisely when it ceased to be punished.
Or, rather, it continued to this day, as in Tuscany,
where the Tuscan penal code (Art. 136), which
survived until December 31, 1889, still punished it
with five years' imprisonment. The illusion as to
the efficacy of punishment is so deeply rooted that a
proposal was made in the Senate, in 1875, to include
this penalty in the new Italian penal code. And at
Murcia, in Spain, trials for blasphemy have lately
been re-established.
Mittermaier observed that, if in England and
Scotland there were far fewer cases of false witness,
perjury, and resistance to authority than in Ireland
and on the Continent, this must be due in great
measure to national character, which is one of the
hereditary elements of normal as well as of abnormal
and criminal life.
Thus even apart from statistics we can satisfy
ourselves that crimes and punishments belong to two
different spheres ; but when statistics support the
teaching of history, no doubt can remain as to the
very slight (I had almost said the absence of any)
deterrent effect of punishments upon crime.
We may indeed derive a telling proof from statis-
THE DATA OF CRIMINAL STATISTICS. 85
tical records, by referring to the progress of repression
in France, over a period of sixty years, as I have
already done in my " Studies " previously quoted.
When we speak of the repression of crime, we must
first of all distinguish between that which is due to
the general character of penal legislation, more or less
severe, and that which is secured by the administra-
tion by the judges of the law as it is. Now, so far as
legislation is concerned, the growth of crime in France
certainly cannot be attributed to the relaxation of
punishment. The legislative reforms which have
taken place, especially in 1832 and 1863, on the
general revision of the penal code, modified punish-
ments to some extent, but with the definite purpose
and result, as shown by the same official records of
criminal statistics, of strengthening the repressive
power of the law by providing for the application of
less aggravated punishments. The repugnance of
juries and judges against excessive punishments, and
their preference for acquittal, is, indeed, a psycho-
logical law. Moreover, it is well known that if there is
in Europe a penal code less mild than any of the rest,
it is that of France, which is the oldest of those now
in force, and still retains much of the military rigour
of its origin. And it must be added that for certain
crimes, as for rapes and indecent assaults, which are
nevertheless constantly increasing in France, the
punishments have been increased by several succes-
sive enactments. The same is true of extortion by
threats of exposure, which occurs more and more
frequently, as M. Joly also observes, in spite of the
severe punishments of the law of 1863.
86 CRIMINAL SOCIOLOGY.
The question, therefore, is reduced to judicial re-
pression, the progress whereof must be observed in
the past half-century, for it has evidently the greatest
influence upon crime. Laws, in fact, have no real
operation if they are not applied more or less rigor-
ously ; for in the social strata which contribute most
to criminality the laws are known only by their prac-
tical application, which is also the only truly defensive
function, carrying with it a special preventive of
the repetition of the crime by the person condemned.
Thus the arguments of jurists and legislators have
not much value for the criminal sociologist when they
are based solely on the psychological illusion that the
dangerous classes trouble themselves about the shaping
of a penal code, as the more instructed and less nume-
rous classes might well do. The dangerous classes
attend to the sentences of the judges, and still more
to the execution of those sentences, than to the
articles of a code. In this connection I cannot agree
with the forecast of Garofalo as to the perilous effect
of the abolition of capital punishment in Italy on the
imagination of the people ; for he was well aware
that, though it is defined in various articles of the old
code, and in about sixty sentences every year, the
punishment of death has not been carried out, which
is the essential point, for the last fifteen years.
The elements which determine the greater or less
severity of judicial repression are of two kinds: —
1. The ratio of persons acquitted to the total
number of prisoners put on their trial.
2. The ratio of the severest punishments to the
total number of prisoners condemned.
THE DATA OF CRIMINAL STATISTICS. 87
Certainly the proportion of acquittals ought not to
indicate a difference in the severity of repression as
such, for condemnation or acquittal ought to point
merely to the certainty or otherwise of guilt, the
sufficiency or insufficiency of the evidence. But, as
a matter of fact, the proportional increase of convic-
tions does partly represent greater severity on the
part of the judges, and still more of the juries, who
display it by attaching weight to somewhat uncon-
vincing evidence, or in too readily admitting circum-
stances which tend to aggravate the offence. This is
confirmed also by the rarity of acquittals in cases of
contumacy.
Of these two factors the former is certainly the
more important, for it is a psychological law that
man, in regard to punishment as to any other kind
of suffering, is more affected by the certainty than by
the gravity of the infliction. And it is to the credit
of criminal theorists of the classical school that they
have steadily maintained that a mild yet certain
punishment is more effectual than one which, being
severe in itself, holds out a stronger hope of escaping
it. Nevertheless it is a fact that they have carried
the theory too far, by seeking to obtain excessive
mitigations and abbreviations of punishment, without
exerting themselves to secure certainty by reforms of
procedure and police administration.
The diminution of the rate of acquittal is evident
and continuous, both at the Assizes and in the
Tribunals, except for the last quadrennial period.
This may of course indicate a more careful manage-
ment of the trials by the judges ; but it certainly shows
88
CRIMINAL SOCIOLOGY.
an undoubted tendency towards increased judicial
severity, which, meanwhile, has not arrested the
growth of crime.
Percentage of Acquittals in France.
Tried in
Assize Courts.
Tribunals.
Total
1826-30 ... .
.. 39 .
31 ...
.. 32
I83I-5 ... .
.. 42 .
28 ...
.. 30
1836-40 ... .
.. 35 •
22 ...
.. 23
I84I-5 ... .
.. 32 .
.
18 ...
... 19
1846-50 ... .
.. 36 .
16 ...
.. 17
I85I-5 ... .
.. 28 .
12 ..
... 13
1856-60 ... .
.. 24 .
10 ...
... 7
I86I-5 ... .
.. 24 .
9 ...
... 6
1866-9 ... •
.. 23 .
17 ...
... 8
1872-6 ... .
.. 20 .
6 ...
... 6
1877-81 ... .
.. 23 .
5 -
... 6
1882-6 ... .
.. 27 .
6 ...
... 6
Percentage
OF ACQU
ITTAl
LS IN England.
Criminal Pi
oceed
ngs. Summary Proceeding*.
1858-62 ... .
25
34
1863-7 ... .
24
31
1868-72 ... .
26
. 24
1873-7 ... .
25
21
1878-82 ... .
24
21
1883-7 ... .
22
20
Here also it appears that the growth of crime in
England, though less than in France, is not due to
the weakening of judicial severity through the greater
number of acquittals. The number has, in fact, con-
stantly diminished, especially in summary proceed-
ings, which is just where the greatest increase of
crime is manifest.
Passing now to the other factor of judicial repres-
sion, that is to the percentage of persons sentenced to
graver kinds of punishment, we have to take into
account, amongst assize cases in France, the prisoners
THE DATA OF CRIMINAL STATISTICS.
89
sentenced to death, penal servitude, and soHtar}'' im-
prisonment, excluding such as are sentenced to cor-
rectional punishment (simple imprisonment and fines)
as well as young prisoners sent to reformatories ; and
in regard to the Tribunals, we must take the percent-
ages of those who are condemned to imprisonment,
which is the most serious punishment, the remainder
being fined, or handed over to their parents, or sent
to reformatories.
TTi? AMPir
Condemned at Assizes
Condemned
by Tribunals
to imprisonment
f KAn^Cn
To death. To penal servitude.
1826-30
••• 2-5 58 ... .
. ... 61
I83I-5
... 1-5 ••
.. 42
. ... 65
1836-40
•7 ••
.. 37
. ... 65
I84I-5
I
.. 40
. ... 61
1846-50
I
.. 39
. ... 62
I85I-5 ..
I'l
.. 48
. ... 61
1856-60 ,.
I
.. 49
. ... 61
1861-5
•6 ..
.. 48
. ... 64
1866-9
•5 ..
.• 47
. ... 68
1872-6
•7 ..
.. 49
. ... 66
1877-81 ..
•7 ..
.. 50
. ... 66
1882-6
I
.. 49
. ... 65
These figures, if they do not show (as might have
been foreseen) so large an increase of severity as in
the percentages of acquittals, yet prove that repression
has not diminished even in the serious character of
the punishments. On the other hand, we can see
that, in the assize cases, excluding the first period,
before the revision of 1832, whilst capital punishment
shows a certain diminution (especially due to the laws
of 1832, 1848, &c., which reduced the number of
cases involving the death penalty), though con-
tinuing at a certain level since 1861, sentences of
penal servitude and solitary confinement show a con-
90 CRIMINAL SOCIOLOGY.
tinued increase from the second period, and especially
since 185 1.
So also at the Tribunals, except for a few oscilla-
tions, as in the ninth period, there is a sustained
increase of repression.
And the fact that this increased ratio of the more
serious punishments actually indicates a greater
severity on the part of the judges can only be con-
tested on the ground of a simultaneous increase of
the more serious crimes and offences. On the other
hand, we note in France a general decrease of
crimes against the person (except for assaults on
children), and still more of crimes against property.
There is also a striking confirmation in the corre-
sponding acquittals and condemnations of a more
serious character. We see, in fact, that the more
serious condemnations increase precisely when the
acquittals decrease (as in the 4th, 6th, 7th, and loth
periods at the Assizes, and the 2nd, 5th, and 8th
periods at the Tribunals) ; whilst in the years of
more frequent acquittals there is also a diminution of
more serious punishments, as in the 5th and 8th
periods at the Assizes. That is to say, the two sets
of statistics actually indicate a greater or less severity
on the part of juries and judges.
This firmer repression is demonstrated in spite of
the continued increase of attenuating circumstances,
which rose at the Assizes from 50 per cent, in 1833
to 73 per cent, in 1886, and at the Tribunals from 54
per cent, in 1851 to 65 per cent, in 1886. Neverthe-
less it is a fact that the number of cases tried by
default at the Assizes has continuously decreased
THE DATA OF CRIMINAL STATISTICS.
91
from a yearly average of 647 in 1826-30 to one of
266 in 1882-6.
For Italy we have the following figures :
Pretors. Tribunals.
Assizes.
Condemned to
Imprison-
Condemned
Penal
servitude
Slighter
imprisonment.
ment.
to death.
for life.
temporary.
punishts
1874
21
79
1-2
5-6
6S
28
5
22
80
1*3
6-S
63
29
6
23
81
1-3
6-1
66
27
7
24
82
1-5
7-2
66
25
8
25
8s
I
7-6
67
25
9
25
1-2
6-3
67
25
1880
26
—
1*3
S'S
68
25
I
24
81
17
6-1
6S
27
2
23
81
IS
6
66
27
3
23
81
17
S-4
64
29
4
23
81
I "3
5*3
64
30
5
23
81
1-6
S-4
63
30
6
21
81
1-6
S7
62
30
7
21
83
I'l
S-8
63
30
8
21
82
1*2
47
65
29
Thus, once more, there has been no relaxation of
repression, except in late years for those condemned
by the Pretors to penal servitude for life.
The conclusion, therefore, is still the same, namely
that judicial repression, in France and Italy, has
grown stronger and stronger, whilst criminality has
increased more and more.
In this fact, again, which confutes the common
opinion that the sovereign remedy of crime is the
greater rigour of punishment, we may fairly find a
positive proof that the penal, legislative, and adminis-
trative sj^stems hitherto adopted have missed their
aim, which can be nothing else than the defence of
society against criminals.
Henceforth we must seek, through the study of
92 CRIMINAL SOCIOLOGY,
facts, a better direction for penal legislation as a
function of society, so that, by the observation of
psychological and sociological laws, it may tend, not
to a violent and always tardy reaction against crime
already evolved, but to the elimination or diversion of
its natural factors.
This fundamental conclusion of criminal statistics
is so important that we must confirm it by adding to
the statistical data the general laws of biology and
sociology. This is the more necessary because my
position as first stated has met with some criticism.
In the first place, it is easily seen, when we com-
pare the total result of crime with the varied charac-
ter of its anthropological, physical, and social factors,
that punishment can exert but a slight influence
upon it. Punishment, in fact, by its special effect as
a legal deterrent, acting as a psychological motive,
will clearly be unable to neutralise the constant and
hereditary action of climate, customs, increase of
population, agricultural production, economic and
political crises, which statistics invariably exhibit as
the most potent factors of the growth or diminution
of criminality.
It is a natural law that forces cannot conflict or
neutralise each other unless they are of the same
kind. The fall of a body cannot be retarded,
changed in direction or accelerated, save by a force
homogeneous with that of gravity. So punishment,
as a psychological motive, can only oppose the
psychological factors of crime, and indeed only the
occasional and moderately energetic factors ; for it is
THE DATA OF CRIMINAL STATISTICS. 93
evident that it cannot, as a preliminary to its appli-
cation, eliminate the organic hereditary factors which
are revealed to us by criminal anthropology.
Punishment, which has professed to be such a
simple and powerful remedy against all the factors
of crime, is therefore a panacea whose potency is far
beneath its reputation.
We must bear in mind a fact which is familiar
enough, though it has been too often forgotten by
legislators and criminalists. Society is not a homo-
geneous aggregate, but on the contrary an organism,
like every animal organism, composed of tissues of
varying structure and sensibility. Every society, in
fact, with its progressive and increasingly distinctive
needs and occupations, is a product of the union of
social classes which differ greatly in their organic
and psychical characteristics. The physical consti-
tution, the habits, sentiments, ideas, and tendencies
of one social stratum are far from being the same
as those of other strata. Here again we have, as
Spencer would say, the law of evolution through a
departure from the homogeneous to the hetero-
geneous, from the simple to the complex, or, in the
words of Ardigo, a natural formation by successive
distinctions. Amongst savage tribes this distinction
of the social strata does not exist, or it is far less
marked than in barbarian societies, and still less than
in civilised societies.
Every schoolmaster with a bent for psychological
observation separates his pupils into three classes.
There is the class of industrious pupils of good dis-
position, who work of their own accord, without
8
94 CRIMINAL SOCIOLOGY.
calling for strict discipline ; that of the ignorant and
idle (degenerate and of weak nervous force) from
whom neither mildness nor severity can obtain any-
thing worth having ; and that of the pupils who are
neither wholly industrious nor wholly idle, and for
whom a discipline based on psychological laws may
be genuinely useful.
This is the case with large bodies of soldiers or of
prisoners, for all associations of men, and for society
as a whole. These partial organisms, due to the
constant relationships of a life more or less in com-
mon, are in this respect reproductions of society as a
whole, just as a fragment of crj'^stal reproduces the
characteristics of the unbroken crystal.^
In the same way, from the standpoint of criminal
sociology, we may divide the social strata into three
analogous categories — the highest, which commits
no crimes, organically upright, restrained only by
the authority of the moral sense, of religious senti-
ments and public opinion, together with the heredi-
tary transmission of moral habits. This class, for
which no penal code would be necessary, is un-
fortunately very small ; and it is far smaller if, in
* There is, however, some difference between the manifestation of
the activity of a group of men and that of the aggregate society. Be-
tween psychology which studies the individual, and sociology which
studies the society, I think there is room for a collective psychology, to
study more or less defined groups. The phenomena of these groups
are analogous, but not identical with those of the sociological body
properly so called, according as the union is more or less definite.
Collective psychology has its field of observation in all unions, however
occasional, such as the public street, the markets, workshops, theatres,
meetings, assemblies, colleges, schools, barracks, prisons, and so forth.
Many practical applications of the data of collective psychology might
be given. An example will be found in a future chapter, when I come
to consider the psychology of the jury.
THE DATA OF CRIMINAL STATISTICS. 95
addition to legal and apparent criminality, we also
take into account that social and latent criminality
through which many men, who are upright so far as
the penal code is concerned, are not upright by the
standard of morality.
Another class, the lowest, is made up of individuals
opposed to all sense of uprightness, who, being with-
out education, perpetually dragged back by their
material and moral destitution into the primitive
forms of the brute struggle for existence, inherit
from their parents and transmit to- their children
an abnormal organisation, adding degeneration and
disease, an atavistic return to savage humanity. This
is the nursery of the born criminals, for whom punish-
ments, so far as they are legal deterrents, are useless,
because they encounter no moral sense which could
distinguish punishment by law from the risk which
also attends upon every honest industry.
Lastly we have the other class of individuals who
are not born to crime, but are not firmly upright,
alternating between vice and virtue, with imperfect
moral sense, education and training, for whom punish-
ment may be genuinely useful as a psychological
motive. It is just this class which yields the large
contingent of occasional criminals, for whom punish-
ments are efficacious if they are directed in their
execution by the axioms of scientific psychology,
and especially if they are aided by the social pre-
vention which reduces the number of opportunities
of committing crimes and offences.
Once again I must express my agreement with
M, Garofalo, who, in dealing with this subject,
96 CRIMINAL SOCIOLOGY.
, insists on the necessity of distinguishing between
the different classes of criminals before deciding as
to the efficacy of punishments.
Yet this conclusion as to the very limited efficiency
of punishments, which is forced upon us by facts,
and which, as Bentham said, is confirmed by the
application of each punitive act, precisely because
its previous application did not succeed in prevent-
ing crime, is directly opposed to general public
opinion, and even to the opinion of jurists and
legislators.
On the inception or the growth of a criminal mani-
festation, legislators, jurists, and public think only of
the remedies, which are as easy as they are illusory,
of the penal code, or of some new Act of repression.
Even if this were useful, which is very problematical,
it has the inevitable disadvantage of making men
ignore other remedies, far more profitable, albeit
more difficult, of a preventive and social kind. And
this tendency is so common that many of those who
have dwelt upon or accepted the positive movement
of the new school, not long after they had admitted
that I was in the right, declared impulsively that
"the constant commission of crime arises from the
lack of timely repression," and that " one of the chief
causes of the growth of crime in Italy is the mildness
of our punishments." Or else they forgot to ask
themselves the elementary question of criminal
sociology, whether and how far punishments have
a genuinely defensive force. This is just what
happens with pedagogues who enter upon long
discussions on the various methods and means of
THE DATA OF CRIMINAL STATISTICS gy
education, without asking thennselves beforehand
whether and how far education has the actual
power of modifying the temperament and character
which heredity stamps upon every individual.
These conclusions take us far beyond the limit of
penal severity, and at the same time they suffice to
combat the objection commonly raised against those
who think, like ourselves, that repressive justice ought
to concern itself not with the punishment of past
crime, but with the prevention of future crime. For
whilst the advocates of severity, and those whom I
will call the " laxativists," virtually think (apart from
a few platonic statements) only of punishments as
remedies of offences, we on the other hand believe
that punishments are merely secondary instruments
of social self-defence, and remedies ought to be
adapted to the actual factors of the offence. And
since the social factors are most capable of modifica-
tion, so we say with Prins that " for social evils we
require social cures."
M. Tarde, then, was not quite accurate in his
remark that my conviction as to the very slight
efficacy of punishments is a mere consequence of
my ideas on the anthropological and physical
character of crime, and that, " on the contrary, the
preponderating importance which he has assigned
to the social causes logically debars him from accept-
ing this conclusion." As a matter of fact, punishment
regarded as a psychological motive so far as it is
a legal deterrent, and as a physical motive so far
as it implies the confinement of the person con-
demned, would more naturally belong, in abstract
gS CRIMINAL SOCIOLOGY.
logic, to the biological and physical theory of crime.
Whereas it is precisely because I recognise the
influence of social environment, in addition, that
experimental logic convinces me that punishment
is not an efficacious remedy of crime, unless forces
are applied beforehand to neutralise, or at any rate
to counteract, the social factors of crime.
And if this is not a new conclusion, as one of our
critics observes by way of reproach — as though it
were not one of the characteristics of truth to repeat
itself persistently, however much it may be forgotten
or even opposed — we must nevertheless remark that
it is now repeated with a mass of new observations
and definite applications, which give it a force
unknown to mere logical deductions.
The classical school has concerned itself simply
with mitigation of punishment as compared with
mediaeval excess ; and for this reason, because
every age has its own mission, it could not also
concern itself with the prevention of crimes, which
is far more useful and efficacious. A few isolated
thinkers, it is true, wrote a few bold and far-reach-
ing pages on preventive methods in opposition to
the numerous volumes on punishment ; but their
words had no effect upon criminalists and legislators,
because science had not yet undertaken the positive
and methodical observation of the natural factors of
crime.
I will confine myself to a few examples, in order to
show that amongst practical men, as amongst public
officials and legislators, the illusion that punishments
are the true panacea of crime is always predominant.
THE DATA OF CRIMINAL STATISTICS. QQ
Practical men declare that " the prohibitive penal
law ought to be regarded as the first and most im-
portant of preventive laws." The prefets in their
circulars, being concerned about the increase of
crime, put forward the most vigilant and severe
repression as a sovereign remedy. A counsellor
of the French Cour de Cassation writes that " in
a worthy system of social police there is no better
guarantee for order and safety than intimidation,"
The Keeper of the Seals, in his report on French
penal statistics for 1876, speaking of the continued
increase of indecent assaults, comes to the conclusion
that " in any case, only firm and energetic repression
can avail against a lamentable increase of crimes
against morality." And more recently another
Keeper of the Seals ended his report on the
statistics of 1826 to 1880 by observing that "the
growth of crime can only be opposed by an in-
cessantly vigorous repression." M. Tarde agreed
with this conclusion, saying that " if crimes are only,
as has been said, railway accidents of a society travel-
ling at full speed, it must not be forgotten that, the
faster the train, the stronger must be the brake . . .
and it is certain that such a state of affairs demands
an increase or a new departure of repression and
punishment."
It may be admitted that our conclusion is not a
novelty ; but, as Stuart Mill said, there are two
ways of effecting useful innovations, to discover what
was not known before, or else to repeat with new
demonstrations the truths which had been forgotten.
And this illusion as to the influence of punishments
100 CRIMINAL SOCIOLOGY.
is so widespread that it is well to inquire into its
historic and psychological arguments ; for, as Spencer
says, in order to decide as to the value of an idea, it
is useful to examine its genealogy.
We may pass by the foundation of primitive
vengeance, which from the age of private combats
passed into the spirit and form of the earliest penal
laws, and still subsists as a more or less unconscious
and enfeebled residuum in modern society. We may
also pass by the hereditary effect of the traditions
of mediaeval severity, which excite an instinctive
sympathy for stern punishment in connection with
every crime.
But one of the main reasons of this tendency is an
error of psychological perspective, whereby men have
forgotten the profound differences of the ideas, habits,
and sentiments of the various social strata, concerning
which I have spoken above. Through this forgetful-
ness the honest and instructed classes confound their
own idea of the penal law, and the impression it
makes upon them, with the idea and the impression
of the social classes from which the majority of
criminals are recruited. This has been remarked
upon by Beccaria, Carmignani, and Holtzendorff
amongst the classical criminalists, and by Lombroso
and others of the new school who have studied the
slang and literature of criminals, which are their
IJsychological mirror. Again, it is forgotten that for
the higher classes, apart from their physical and
moral repugnance against crime, which is the most
powerful repelling force, there is the fear of public
opinion, almost unknown amongst the classes which
THE DATA OF CRIMINAL STATISTICS. 10 1
have stopped short at a lower stage of human
evolution.
For the higher classes one example may suffice.
It is the fact observed upon by Mr. Spencer, that
gambling debts and Stock Exchange bargains are
scrupulously discharged, though for them there is
neither penal obligation nor evidence in writing.
And it may be added that imprisonment for debt
never promoted the fulfilment of contracts, nor has its
abolition discouraged it.
As for the lower classes, one visit to a prison
suffices. There, if you ask a prisoner why the punish-
ment did not deter him from the crime, you generally
get no answer, because he has never thought about it.
Or else he replies, as I have often found, that " if you
were afraid of hurting yourself when you went to
work, you would give up working." These indeed
are what one would expect to be the feelings prevail-
ing amongst the lower social strata, to whom honest
sentiments and ideas, which for us are traditional and
organic, come very late — just as Mr. Stanley observed
that the people in Central Africa are only now begin-
ning to employ stone guns, which in past ages were
used in Europe.
Another fallacy which helps to strengthen confi-
dence in punishments is that the effect of exceptional
and summary laws is treated on the same basis as
that of the ordinary codes, slow and uncertain in their
procedure, which saps all their force by the chance of
immunity, and the interval between the unlawful act
and its legal consequence.
Lombroso and Tarde, indeed, have confronted me
102 CRIMINAL SOCIOLOGY.
with historic examples of vigorous and even savage
repressions, whereby it was possible to stamp out
some epidemic crime. But these examples are not
conclusive, for I have shown that, as soon as these
exceptional repressions were at an end, as, for instance,
after the death of Pope Sixtus V., brigandage and
other crimes were persistently renewed. But my main
rejoinder is this, that these exceptional repressions
depend upon the jus belli^ and therefore cannot enter
into the ordinary and constant methods of penal ad-
ministration. This may not have the effect of an
extraordinary repression, secured by a somewhat un-
scrupulous promptitude, which strikes innocent and
guilty alike ; and thus it is impossible to treat as equal,
or even to compare, the influence of methods which
are essentially different.
Another false comparison is drawn between the
effective force of various punishments, and their
potentiality is confounded, whereas it is necessary to
distinguish the punishment of the written code from
that of the judge, and still more from that carried into
execution. In fact it is only natural that punishment
should more or less terrify the criminal who has been
judged and is about to be condemned ; but this in no
way proves its efficacy, which should have been dis-
played by the menace of the law in guarding the
prisoner against the crime. Even with the death
penalty, there are many instances of condemned per*
sons who, through congenital insensibility, submit to
it cynically. Moreover, for such as have been over-
whelmed with terror when the moment of executi-- n
arrived, the utmost that this fact can prove is tiiat
THE DATA OF CRIMINAL STATISTICS. I03
they are so constituted as to give themselves up com-
pletely to the impression of the moment, without the
energy to resist it. In other words, so long as the
punishment is distant and uncertain, they were not
terrified, but having always yielded to the impression
of the moment, they yielded to the criminal impulse.
For other punishments, also, it is known that puni-
tive methods, even when not contrary to the law, as
they sometimes are in Italy, are always less stern than
simple folk imagine when they read the codes and the
sentences. And criminals naturally judge of punish-
ments by their own experience, that is to say, in
accordance with their practical application, and not
with the more or less candid threats of the law-
niaker.
If we add to vindictive feeling, historic traditions, ob-
livion of bio-psychic differences of the social strata, the
confounding of exceptional laws and ordinary punish-
ments, and of the varying effective force of punish-
ment, the attitude of the public mind and the natural
tendency of criminalists to think only of their two
syllogistic symbols of crime and punishment — if we
further add the easy-going idea of the multitude, that
the inscribing of a law in the statute-book is a suffi-
cient remedy for social diseases, we can readily under-
stand how this exaggerated and illusory confidence
in punishment is so persistent, and crops up in every
theoretical or practical discussion, in spite of the
strong refutation which is daily afforded by facts
and psychological observation.
All human actions, like the actions of animals,
are developed between the two opposite poles of
104 CRIMINAL SOCIOLOGY.
pleasure and pain, by the attraction of the former and
the repulsion of the latter. And punishment, which
is one of the social forms of pain, is always a direct
motive in human conduct, as it is also an indirect
guide, by virtue of its being a sanction of justice, un-
consciously strengthening respect for the law. But
still this psychological truth, whilst it demonstrates
the natural character of punishment, and the conse-
quent absurdity of abolishing it as absolutely void of
efficacy, does not destroy our conclusion as to the
slight efficacy of punishment as a counteraction of
crime.
We have only to distinguish between punishment
as a natural sanction and punishment as a social
sanction in order to see how the really great power
of natural punishment almost entirely disappears in
social punishment, which in all our systems is but a
sorry caricature.
The mute but inexorable reaction of nature against
every action which infringes her laws, and the grievous
consequences which inevitably follow for the man who
has infringed them, constitute a repression of the
most efficacious kind, wherein every man, especially
in the earlier years of his life, receives daily and never
to be forgotten lessons. This is the discipline of
natural consequence, which is a genuine educational
method, long since pointed out by Rousseau, and
developed by Spencer and Bain.
But in this natural and spontaneous form, the
punishment derives its whole force from the inevitable
character of the consequences. And it is one of the
few observations of practical psychology which have
THE DATA OF CRIMINAL STATISTICS. I05
been made and repeated by the classical students of
crime, that in punishment, and especially the punish-
ment of death, the certainty is more effectual than the
severity. And I will add that even a small uncer-
tainty takes away from a pain which we fear, much of
its repelling •force, whereas even a great uncertainty
does not destroy the attraction of a pleasure which
we are hoping ibr.
Here, then, we have a primary and potent cause of
the slight efficacy of legal punishments, in the pictur-
ing of the many chances of escape. First there is the
chance of not being detected, which is the most
powerful spring of all contemplated crime ; then the
chance, in case of detection, that the evidence will not
be strong enough, that the judges will be merciful, or
will be deceived, that judgment may be averted
amidst the intricacies of the trial, that clemency may
either reverse or mitigate the sentence. These are so -
many psychological causes which, conflicting with the
natural fear of unpleasant consequences, weaken the
repellent force of legal punishment, whilst they are
unknown to natural punishment.
There is also another psychological condition which,
undermining even the force of natural punishment,
almost entirely destroys the power of social punish-
ment ; and that is improvidence. We see, in fact,
that even the most certain natural consequences are
defied, and lose most of their power to guard an im-
provident man from anti-natural and dangerous actions.
Now in regard to legal punishment, even apart from
passionate impulse, it is known that criminals, occa-
sional and other, are specially improvident, in common
I06 CRIMINAL SOCIOLOGY.
with savages and children. This weakness is con-
spicuous enough in the lower and less instructed
classes, but amongst criminals it is a genuine charac-
teristic of psychological infirmity.
Now, whilst a very slight force is sufficient to pro-
duce very great and constant effects, when it acts in
harmony with natural tendency and environment,
every process, on the other hand, which is opposed to
the natural tendencies of man, or which does not
follow them closely, encounters a resistance which
triumphs in the last resort.
Everyday life gives us many examples. The uni-
versity student, when he gambles, risks on a single
card the last remnant of his allowance, and prepares
for himself a thousand privations. Miners and work-
men at dangerous trades refuse to take warning by
the sight of comrades whom they have seen dying or
repeatedly attacked by disease. M. Despine related
that, during the cholera of 1866, at Bilbao, there were
some who set up an imitation of the disease in order
to obtain charitable relief, though in several cases death
ensued. M. Fayet, in an essay on the statistics of ac-
cused persons in France, extending over twenty years,
remarked that specific and proportionately greater
criminality was displayed by notaries and bailiffs,
who knew better than any one else the punishments
fixed by law. And in the statistics of capital punish-
ment at Ferrara, during nine centuries, I discovered
the significant fact that there is a succession of
notaries executed for forgery, frequently at very short
intervals, in the same town. This attests the truth of
the observation made by Montesquieu and Beccaria,
THE DATA OF CRIMINAL STATISTICS. I07
as against the deterrent power of the death penalty,
for men grow accustomed to the sight ; and this again
is confirmed by the fact mentioned by Mr. Roberts, a
gaol chaplain, and M. Berenger, a magistrate, that
several condemned men had previously been present
at executions, and by another fact mentioned by
Despine and Angelucci, that in the same town, and
often in the same place, in which executions had been
carried out, murders are often committed on the same
day.
A man does not change his identity ; and no penal
code, whether mild or severe, can change his natural
and invincible tendencies, such as inclination to plea-
sure and persistent hope of impunity.
Let us also observe that, as Mill said, the permanent
efficacy of any measure in the spheres of politics,
economy, and administration, is always inversely pro-
portional to its force and suddenness. Now punish-
ment does not stand the test even of this sociological
law, for in its essence it is only the primitive reaction
of force against force. It is true that, as Beccaria
said, the classical school has always aimed at render-
ing social reaction against crime less violent ; but
that is not enough. Henceforward, if we are to adapt
ourselves to psychological and sociological laws, the
development of our defensive administration must
tend to render this social reaction less direct. If the
struggle for existence is always to remain the supreme
law of living creatures, yet it is not necessary that it
should always be developed in the violent forms of
primitive humanity. On the contrary, one of the
results of social progress is to make the struggle for
existence less violent and less direct.
SlAii: ilUUi.iAL 6x.ii0vjiL,
itOQ ii^acnLrriii, calk.
I08 CRIMINAL SOCIOLOGY.
In the same way, the continuous struggle between
society and criminals, instead of being a physical and
social force, directly opposed to a physical individual
force, should rather become an indirect system of
psychical forces. Penal law in society has the same
qualities as education in the family and pedagogy in
schools. All the three were once dominated by the
idea of taming human passions by force ; the rod was
supreme. In course of time it was perceived that this
produced unexpected results, such as violence and
hypocrisy, and then men thought fit to modify their
punishments. But in our own days schoolmasters see
the advantage of relying solely on the free play of
tendencies and bio-psychological laws. Similarly the
defensive function of society, as Romagnosi said, in
place of being a physical and repressive system, ought
to be a moral and preventive system, based on the
natural laws of biology, psychology, and sociology.
Force is always a bad remedy for force. In the
Middle Ages, when punishments were brutal, crimes
were equally savage ; and society, in demoralising
rivalry with the atrocity of criminals, laboured in a
vicious circle. Now, in the lower social grades, the
brutal man, who often resorts to violence, is in his
turn frequently the victim of violence ; so that,
amongst criminals, a scar is somewhat of a profes-
sional distinction.
To sum up, our doctrine as to the efficacy of punish-
ments does not consist, as some critics too sparing of
their arguments have maintained, in an absolute nega-
tion, but rather and especially in objecting to the
THE DATA OF CRIMINAL STATISTICS. log
traditional prejudice that punishments are the best
and most efifectual remedies of crime.
What we say is this. Punishment by itself, as a
means of repression, possesses a negative rather than
a positive value ; not only because it has not the same
influence on all anthropological types of criminals, but
also because its use is rather to preclude the serious
mischief which would result from impunity than to
convert, as some imagine that it can, an anti-social
into a social being. But impunity would lead to a
demoralisation of the popular conscience in regard to
crimes and offences, to an increase of the profound
lack of foresight in criminals, and to the removal of
the present impediment to fresh crimes during the
term of incarceration.
It is the same with education, the modifying power
of which is commonly exaggerated. Education,
though it has an enduring influence on children, and
is therefore more effectual than punishment, is far
more serviceable in eliminating anti-social tendencies,
whereof we all possess the germs, than in any sup-
posed creation of social tendencies and forces which
were not present from birth.
Thus, whilst the consequences of impunity and
lack of education are serious and mischievous, still
this does not prove conversely that punishment and
education have in reality so positive an influence as
is commonly attributed to them.
It is precisely on the ground of this negative, yet
real efficacy of punishments, especially whilst they
are being carried out, that, whilst we appreciate the
mitigation of punitive discipline which has been
9
no CRIMINAL SOCIOLOGY.
achieved by the classical school, we believe, on the
other hand, that their abbreviation of the term of
punishments is altogether mistaken and dangerous.
We admit that punishment ought not to be an
arbitrary and inhuman torture, and for this reason
we have no sympathy with the system of solitary
confinement, now so much in fashion with the
classical jurists and prison authorities, precisely
because it is inhuman, as well as unwise and need-
lessly expensive.
It is a psychological absurdity and a social danger,
which nevertheless underlies the new Italian penal
code, that punishment ought to consist more and
more in a short isolation of the prisoner. For, setting
aside the well-known results of short punishments,
such as corruption and recidivism, it is evident that
in this way punishment is deprived of its main
element of negative efficiency against crime, as well as
of its effect in preventing crime during the incarcer-
ation of the criminal.
II.
Since punishments, instead of being the simple
panacea of crime which popular opinion, encouraged
by the opinions of classical writers on crime and of
legislators, imagine them, are very limited in their
deterrent influence, it is natural that the criminal
sociologist should look for other means of social
defence in the actual study of crimes and of their
natural origin.
We arc taught by the everyday experience of the
THE DATA OF CRIMINAL STATISTICS. Ill
family, the school, associations of men and women,
and the history of social life, that in order to lessen
the danger of outbreaks of passion it is more useful
to take them in their origin, and in flank, than to meet
them when they have gathered force.
Bentham relates that in England the delays caused
by hard-drinking couriers, who used to be heavily fined
without any good result, were obviated by combining
passenger traffic with the postal service. Employers
of labour secure industry and the most productive
work far more easily by offering a share of the
realised profits than by a system of fines. In the
German universities, academic jealousies and intoler-
ance have been in great measure overcome by paying
the professors in proportion to the number of their
pupils, so that the Faculties find it to their interest
to engage and encourage the best professors, in order
to attract as many students as possible. Thus the
activity and zeal of professors, magistrates, and
officials would be stimulated if their remuneration
depended not only on the automatic test of seniority,
but also on the progress displayed by publications,
sentences not reversed, settlements not cancelled, and
the like. It is better to regulate the disturbing rest-
lessness of children by timely diversions rather than
by attempting to repress them in a manner injurious
to their physical and moral health. So in lunatic
asylums and prisons, work is a better means of
order and discipline than chains and castigation.
In brief, we obtain more from men by consulting
their self-respect and interests than by threats and
restraint.
112 CRIMINAL SOCIOLOGY,
If the counteraction of punishment must inevitably
be opposed to criminal activity, still it is more con-
ducive to social order to prevent or diminish this
activity by means of an indirect and more effective
force.
In the economic sphere, it has been observed that
when a staple product fails, recourse is had to less
esteemed substitutes, in order to supply the natural
wants of mankind. So in the criminal sphere, as we
are convinced by experience that punishments are
almost devoid of deterrent effect, we must have
recourse to the best available substitutes for the
purpose of social defence.
These methods of indirect defence I have called
penal substitutes. But whereas the food substitutes
are as a rule only secondary products, brought into
temporary use, penal substitutes should become the
main instruments of the function of social defence, for
which punishments will come to be secondary means,
albeit permanent. For in this connection we must
not forget the law of criminal saturation, which in
every social environment makes a minimum of crime
inevitable, on account of the natural factors insepar-
able from individual and social imperfection. Punish-
ments in one form or another will always be, for this
minimum, the ultimate though not very profitable
remedy against outbreaks of criminal activity.
These penal substitutes, when they have once been
established in the conscience and methods of legis-
lators, through the teaching of criminal sociology,
will be the recognised form of treatment for the
social factors of crime. And they will also be
THE DATA OF CRIMINAL STATISTICS. II3
more possible and practical than that universal social
metamorphosis, direct and uncompromising, insisted
on by generous but impatient reformers, who scorn
these substitutes as palliatives because humanitarian
enthusiasm causes them to forget that social organisms,
like animal organisms, can be only partially and
gradually transformed.
The idea of these penal substitutes amounts, in
short, to this. The legislator, observing the origins,
conditions, and effects of individual and collective
activity, comes to recognise their psychological and
sociological laws, whereby he will be able to obtain
a mastery over many of the factors of crime, and
especially over the social factors, and thus secure
an indirect but more certain influence over the
development of crime. That is to say, in all legis-
lative, political, economic, administrative, and penal
arrangements, from the greatest institutions to the
smallest details, the social organism will be so adjusted
that human activity, instead of being continually and
unprofitably menaced with repression, will be in-
sensibly directed into non-criminal channels, leaving
free scope for energy and the satisfaction of individual
needs, under conditions least exposed to violent dis-
turbance or occasions of law-breaking.
It is just this fundamental idea of penal substitutes
which shows how necessary it is that the sociologist
and legislator should have such a preparation in
biology and psychology as Mr. Spencer justly
insisted on in his " Introduction to Social Science."
And it is the fundamental idea rather than the sub-
stitutes themselves that we should bear in mind if we
114 CRIMINAL SOCIOLOGY.
would realise their theoretical and practical value as
part of a system of criminal sociology.
As for. the efficacy of any particular penal sub-
stitute, I readily admit, in some sense at least, the
partial criticisms which have been passed upon them.
Apart from such as simply say that they do not
believe in the use of alternatives to punishment,
and such as confine themselves to the futile question
whether this theory belongs to criminal science or
to police administration, a majority of criminal soci-
ologists have now definitely accepted the doctrine of
penal substitutes. This theory is accepted, not as
an absolute panacea of crime, but, as I have always
stated it, in the sense of a combination of measures
analogous to penal repression ; in place of trusting
solely to repression for the defence of society against
crime.
Let us take note of a few examples.
I. In the Economic Sphere. — Free Trade (apart from
the temporary necessity of protecting a particular
manufacturing or agricultural industry), by preventing
famines and exceptional high prices of and taxes on
food, eliminates many crimes and offences, especially
against property. — Unrestricted emigration is a safety-
valve, especially for a country in which this pheno-
menon, assuming large proportions, carries off many
persons who are easily driven to crime by wretched-
ness, or by their unbalanced energy. Thus the
number of recidivists has diminished in Ireland,
not by virtue of her prison systems, but by emi-
gration, which reached forty-six per cent, of released
prisoners. In Italy, also, there has been a decrease
THE DATA OF CRIMINAL STATISTICS. IIJ
of crime since 1880, owing to other causes, such as
mild winters and plentiful harvests, but also through
a vast increase of emigration. — Smuggling, which for
centuries resisted extremely harsh punishments, such
as amputation of the hand, and even death, and which
still resists prison and the fire-arms of the revenue
officers, is suppressed by the lowering of the import
tariff, as M. Villerme has shown in the case of
France. So that everyday facts justify the system of
Adam Smith, who said that the law which punished
smuggling, after creating the temptation, and which
increased the punishment when it increased the temp-
tation, was opposed to all justice ; whilst Bentham,
on the contrary, departing from his maxim that the
punishment ought to be dreaded more strongly than
the offence attracted, called for the stern repression
of smuggling. — The system of taxation which touches
wealth and visible resources instead of the prime
necessaries of life, and which is proportional to the
taxpayer's income, diminishes the systematic frauds
which no punishment availed to stop, and it will also
abolish the arbitrary and exaggerated fiscal traditions
which have been the cause of rebellions and outrages.
In fact, Fr^gier describes the criminal industries which
are called into existence by octrois, and which will
disappear with the abolition of these absurd and un-
just duties. And whilst M. Allard demonstrated
that a decrease of taxes on necessaries would have
beneficial effects, not only in economic affairs but
also in respect of commercial frauds, the Report on
French Criminal Statistics for 1872 calmly continued
to call for more severe repression of such frauds. To
Il6 CRIMINAL SOCIOLOGY.
this M. Mercier replied that if the cause — that is to
say, disproportionate taxes — were not removed, it
would be impossible to prevent the effects. — Im-
munity from taxation for the minimum necessary
to existence, by preventing distraint, and the con-
sequent diminution of small properties, which means
the increase of the very poor, will obviate many
crimes, as we see from the agrarian conditions in
Ireland. Thus there is a demand in Italy for the
inalienability of small properties, as in America
under the Homestead Exemption Law. — Public
works, during famine and hard winters, check the
increase of crimes against property, the person, and
public order. For instance, during the scarcity of
1853-5 in France, there was no such enormous
increase of theft as during the famine of 1847, simply
because the Government set up vast relief works in
the winter months.
The taxes and other indirect restrictions on the
production and sale of alcohol are far more efficacious
than our more or less enormous gaols. The question
of pronounced and chronic drunkenness has increased
in gravity, owing to its effect upon the physical and
moral health of the people.
In France the average consumption of wine, esti-
mated at 62 litres (13 64 gallons) per head in 1829,
exceeded 100 litres in 1869 ; and in Paris the average
of 120 litres in 1819-30, reached 227 litres in 1881.
The average yearly consumption of alcohol in France
rose from '93 in 1829 to 3-24 in 1872, and 3*9 in 1885,
the rates in a few towns being still higher. The total
manufacture of alcohol in France (95 per cent of
THE DATA OF CRIMINAL STATISTICS, II7
which is consumed in the form of drink) rose from
479,680 hectolitres in 1843 to 1,309,565 in 1879, and
2,004,000 in 1887. Simultaneously, we have seen
that there was an increase of crimes and offences in
PVance, suicides in particular having increased from
1,542 in 1829 to 8,202 in 1887.
Moreover I have shown by a special table {Archivio
di Psichiatria) that in France, despite a certain inevit-
able variation from year to year, there is a manifest
correspondence of increase and decrease between the
number of homicides, assaults, and malicious wound-
ing, and the more or less abundant vintage, especially
in the years of extraordinary variations, whether of
failure of the vintage (1853-5, 1859, 1867, 1873,
1878-80), attended by a remarkable diminution of
crime (assaults and wounding), or of abundant vin-
tages (1850, 1856-8, 1862-3, 1865, 1868, 1874-5)
attended by an increase of crime.
I was also the first to show that in the vintage
months there is an increase of occasional crimes and
offences against the person, owing to that connection
between drink and crime which had already been
remarked upon by M. Pierquiii amongst others, and
illustrated by the newspaper reporters on the days
which follow Sundays and holidays.
But apart from their natural variation, the connec-
tion between drink and crime is definitely established.
Every day we have the confirmation of Morel's state-
ment, that "alcoholism has produced a demoralised
and brutalised class of wretched beings, characterised
by an early depravation of instincts, and by indulgence
in the most immoral and dangerous actions." It is
Il8 CRIMINAL SOCIOLOGY.
useless to quote again in this place the data of
psycho-pathology and legal medicine, or those of
prison statistics relating to imprisoned drunkards,
or to tavern brawls as the proved causes of crime.
Nevertheless it is a fact that the relation of cause
and effect between drink and crime has recently been
denied, with the aid of arguments based upon statistics.
M. Tammeo opened the discussion by observing that
the countries of Europe and the provinces of Italy
distinguished by the largest consumption of alcohol,
show lower ratios under the worst crimes of violence.
He gave to his remark a relative and limited value,
for he only denied that the abuse of liquor was the
most active cause of crime. After him M. Fournier
de Flaix, maintaining the same proposition with the
same statistical arguments, and admitting that
" alcohol is a special scourge for the individual who
indulges in it," yet concluded that " alcoholism is not
a scourge which menaces the European race." And
he repeated that the nations which consumed the
greatest quantity of alcohol show a slighter frequency
of crime, especially against the person. Lastly M.
Colajanni enlarged upon the same proposition, using
the statistical data so fully set out by M. Kummer,
and drew a still more positive conclusion, that " there
is a lack of constancy, regularity, and universality in
the relations, coincidence, and sequence, as between
alcoholism and crime and suicide ; so that it is im-
possible to establish any statistical relation of cause
and effect between these phenomena."
Passing over the grave errors of fact in M. Cola-
janni's brochure, I will only observe that this pro-
THE DATA OF CRIMINAL STATISTICS. IIQ
position is a pure misapprehension of statistical
logic.
If we once admit (and unfortunately it cannot be
denied) the bad influence of alcohol on bodily and
mental health, in the form of spirits as well as of
wine — as to which it is not correct to say that the
southern departments are not consumers of alcohol —
it cannot be maintained that alcohol, which is physi-
cally and morally injurious to individuals, is not
hurtful to nations, which are but aggregates of
individuals.
There is an easy answer to the statistical argu-
ments, (i) A symmetrical and continuous agreement
of figures is never found in any collection of statistics,
for in all that concerns a society the intervention of
individual, physical, and social causes is inevitable.
(2) A negative conclusion from these partial and
natural disagreements (for it is especially true in
biology and sociology that every rule has its excep-
tions, due to intervening causes) would only be
justified if it had been maintained that alcoholism
is the sole and exclusive cause of crime. But as
this has never been asserted by anybody, all the
statistical arguments of Fournier and Colajanni are
based on a misapprehension. And unfortunately
they do not destroy the link of causality between
drink and crime. This connection is occasional, in
assaults, wounding, and homicide in acute alcoholism.
It is habitual, in the case of chronic alcoholism, as in
crimes against property, the person, morality, and
public officers. And this in spite of the relatively
low figures, though lower than the facts warrant, con-
120 CRIMINAL SOCIOLOGY.
tained in the general statements, apart from special
and scientific inquiries into alcoholism as a direct and
manifest cause of crime and suicide.
I wrote as early as 1881 that alcoholism, prior to
its becoming a cause, is the effect of wretched social
conditions in the poorer classes ; and that to the
one-sided simplicity of economic causes it is neces-
sary to add certain bio-psychical conditions and
conditions of physical environment, which go far
to determine the geographical distribution of spirit-
alcoholism (chronic and more serious, in northern
countries and provinces) and wine-alcoholism (acute
and less deep-seated, in the countries and provinces
of the south).
It was therefore natural that indirect measures
against alcoholism should have been resorted to long
ago, such as the raising of the tax on alcoholic drinks,
and the lowering of that on wholesome beverages,
such as coffee, tea, and beer ; strict limitation of
the number of licenses ; increased responsibility of
license-holders before the law, as in America ; the
expulsion of tipsy members from workmen's societies ;
the provision of cheap and wholesome amusements ;
the testing of wines and spirits for adulteration ;
better organised and combined temperance societies ;
the circulation of tracts on the injurious effects of
alcohol ; the abolition of certain festivals which
tended rather to demoralisation than to health;
discouragement of the custom of paying wages on
Saturday ; the establishment of voluntary temperance
homes, as in America, England, and Switzerland.
North America, England, Sweden and Norway,
THE DATA OF CRIMINAL STATISTICS. 121
France, Belgium, Holland, and Switzerland have
applied remedies against drunkenness (to the length
of a State monopoly of drink in Switzerland) ; but
with too much zeal for public revenue,- and, under the
pretext of public health, almost exclusively framed
with a view to duties on manufacture, distribution,
and consumption. Yet these duties are quite in-
adequate by themselves, and may even tend to the
injury of the physical and moral health of the nation,
the increase of price, leading to frauds and adultera-
tion.
Penal laws against drunkenness, naturally resorted
to in all countries, are far from being effectual. There
is so far no system of direct and indirect measures
against alcoholism, duly co-ordinated, beyond taxa-
tion and punishment. And we perceive, as for instance
in France, in spite of the repressive law introduced by
my distinguished friend Senator Roussel (January,
1873), and in spite of the extremely high duties,
which were doubled in 1872 and 1880, that alcoholism
persists with a terrible and fatal increase. So it is,
more or less, in every country still, in spite of duties
and punishments.
The irregularity of wages, and the deceitful vigour
imparted by the first recourse to alcohol, the poverty
and excessive toil of the working classes, insufficiency
of food, inherited habits, and the lack of efficacious
preventive measures, are influences which prevent the
working man from resisting this scourge ; and no
fiscal or repressive law, acting solely by direct com-
pulsion, will ever be able to paralyse these natural
tendencies, which can only be weakened by indirect
122 CRIMINAL SOCIOLOGY.
measures. On the other hand, when we remember
that habitual intoxication, so common in mediaeval
days amongst the nobles and townsfolk, has grown
less and less frequent in those classes (aided by the
introduction and rapid diffusion of coffee since the
time of Louis XIV.), it is possible to hope that the
improvement of economic, intellectual, and moral
conditions amongst the populace will gradually suc-
ceed in modifying this terrible plague of drink, which
cannot be cured all at once.
To continue our illustrations of penal substitutes,
we see that the substitution of metallic money for a
paper medium decreases the number of forgers, who
on the contrary had defied penal servitude for life.
False money is more easily detected than a spurious
note.i — Money dealers and dealers in precious stones
have done more than any punishment to check the
crime of usury, as was shown in the case of Spain,
after her American conquests ; whereas mediaeval
punishments never prevented the recrudescence of
usury in one form or another. Popular and Agri-
cultural Credit Banks, which are practically within
the reach of all, are more efficacious against usury in
our own days than the special repressive laws enacted
once more in Germany and Austria, under the influ-
ence of the old illusion. — With the diminution ot
interest on the public funds the stream of capital
has been diverted into commerce, manufactures, and
agriculture, thus warding off stagnation, with the
• Coiners and forgers of notes constitute "09 per cent, of the total of
condemned persons in France, and "04 per cent, in Belgium ; but they
reach '4 per cent, in Italy, on account of the greater circulation of bank-
notes.
THE DATA OF CRIMINAL STATISTICS. 123
bankruptcies, forgeries, frauds, &c,, which result there-
from.— The adjustment of salaries to the needs of
public officials, and to general economic conditions,
stems the tide of corruption and embezzlement, which
were partly due to their concealed poverty. — Limited
hours of duty for the responsible services on which
the safety of the public depends, as for instance in
railway stations, are far more serviceable in preventing
accidents than the useless punishment of those who
are guilty of manslaughter. — High-roads, railways,
and tramways disperse predatory bands in rural
districts, just as wide streets and large and airy
dwellings, with public lighting and the destruction
of slums, prevent robbery with violence, conceal-
ment of stolen goods, and indecent assaults. — Inspec-
tion of workshops and shorter hours for children's
labour, with their superintendence of married women,
may be a check on indecent assaults, which penal
servitude does not prevent. — Cheap workmen's
dwellings, and general sanitary measures for houses
both in urban and rural districts, care being taken
not to crowd them with poor families, tend to
physical health, as well as to prevent many forms
of immorality. — Co-operative and mutual societies,
provident societies and insurance against old age,
funds for sick and infirm workmen, employers'
liability for accidents during work, from machinery
or otherwise ; popular savings' banks, charity
organisation societies and the like, obviate a large
number of offences against property and the person
much better than a penal code. — I have maintained
in the Italian Parliament that the reform of religious
124 CRIMINAL SOCIOLOGY.
charities, which in Italy represent funds to the amount
of two milliards, might lead to the prevention of crime.
— Measures for the discouragement of mendicity
and vagrancy, above all agricultural colonies, as in
Holland, Belgium, Germany, and Austria, would
be the best penal substitute for the very frequent
offences committed by vagabonds. Thus it may be
concluded that a prudent social legislation, not stop-
ping short at mere superficial and perfunctory reforms,
might constitute a genuine code of penal substitutes,
which could be set against the mass of criminal im-
pulses engendered by the wretched conditions of the
most numerous classes of society.
II. /n the Political Sphere. — For the prevention
of political crime, such as assassination, rebellion,
conspiracies, civil war, arbitrary repression and pre-
vention by the police are powerless ; there is no
other means than harmony between the Government
and the national aspirations. Italy has been a con-
spicuous example of this, for under the rule of the
foreigner, neither the scaffold nor the galleys could
hinder political outrages, which have disappeared
with national independence. So with Ireland and
Russia. Germany, which believed that it could stamp
out socialism by exceptional penal laws, discovered
its mistake. — For so-called press offences (which are
either ordinary offences committed by the aid of the
press, or are not offences at all), nothing but freedom
of opinion can render attacks and provocations of
a political type less frequent. — Respect for the law
spreads through a nation by the example on the part
of the governing classes and authorities of constant
THE DATA OF CRIMINAL STATISTICS. 125
respect for the rights of individuals and associations,
far better than by policemen and prisons. — Electoral
reform adapted to the condition of a country is the
only remedy against electoral offences. — Similarly, in
addition to the economic reforms already indicated,
political and parliamentary reforms are much more
serviceable than the penal code in preventing many
offences of a social and political type, provided that
a more real harmony has been established between
a country and its lawful representation, and that the
latter is freed from the occasions and the forms which
lead to its abuse, by removing technical questions
from injurious political influences, and giving the
people a more direct authority over public affairs,
including the referendum. — Finally, that great mass
of crimes, isolated or epidemic, evolved by unsatisfied
needs and the neglect of separate divisions of a
country, which differ in climate, race, traditions,
language, customs, and interests, would be largely
eliminated if we were to dispense with the vague
folly of political symmetry and bureaucratic centra-
lisation, and in their place to adapt the laws to the
special features of the respective localities. National
unity in no way depends upon legislative and ad-
ministrative uniformity, which is merely its unhealthy
exaggeration. It is indeed inevitable that laws,
which in our day merely represent a mode of
contact between the most varied moral, social and
economic conditions of different localities, should
always be inadequate to social needs — too restricted
and slow in action for one part of the country, too
sweeping and premature for another part, just as the
lO
126 CRIMINAL SOCIOLOGY.
average convict's garb is too long for those who are
short, and too short for those who are tall. Adminis-
trative federation with political unity (e phirihus
unum) would furnish us with an aggregate of penal
substitutes, restoring to each part of the social
organism that freedom of movement and develop-
ment which is a universal law of biology and
sociology — for an organism is but a federation too
lightly appreciated by the advocates of an artificial
uniformity, such as ends by conflicting with unity
itself.
III. In the Scientific Sphere. — The development of
science, which creates fresh instruments of crime,
such as fire-arms, the press, photography, litho-
graphy, new poisons, dynamite, electricity, hypno-
tism, and so forth, sooner or later provides the
antidote also, which is more efficacious than penal
repression. — The |Dress, anthropometric photography
of prisoners, telegraphy, railways, are powerful
auxiliaries against crime. — Dissection and the pro-
gress of toxicology have decreased the number
of poisoning cases ; and experience has already
proved that " Marsh's preparation " has rendered
poisoning by arsenic, once so common, com-
paratively rare. — A similar process has recently
been suggested as a means of detection in cases of
forgery, for when documents are exposed to iodine
vapour, effaced or altered writing is restored. —
Women doctors will diminish the opportunities of
immorality. — The free expression of opinion will
do more to prevent its possible dangers than trials
of a more or less scandalous kind. — Piracy, which
THE DATA OF CRIMINAL STATISTICS. I27
was not extirpated by punishments which are now
obsolete, is disappearing under the effects of steam
navigation. — The spread of Malthusian ideas prevents
abortion and infanticides.^ — Systematic bookkeeping,
by its clearness and simplicity, obviates many frauds
and embezzlements, which were encouraged by the
old complicated methods. — Cheques, by avoiding
the necessity of frequent conveyance of money, do
more to prevent theft than punishments can do. —
The credentials given by some banks to their
clerks, whose duty it is to witness the signature of
the actual debtor, prevent the falsification of bills.
— Certain bankers have adopted the practice of
taking an instantaneous photograph of every one
presenting cheques for large amounts. — Safes, bolts,
and alarm-bells, are a great security against thieves.
* No doubt there may be a difiFerence of opinion on this subject in
France, where public opinion is too much exercised over the problem
of depopulation. I agree with M. Varigny ("La Theorie du Nombre,"
Revue des Deux Mondes, Dec. 15, 1890) that the population of a
country is not the sole, or even the principal consideration. Apart
from physical characteristics (race), intellectual and moral qualities,
and the productiveness of the soil, on which M. Varigny dwells, we
must take into account, as it seems to me, the unquestionable law by
virtue of which the struggle for existence, amongst individuals as
amongst nations, becomes gradually less vehement and direct. War,
which is an everyday matter with savages, grows constantly more rare
and difficult. The varying social and international conscience of
civilised humanity is not to be neglected, and it must be reckoned
with as a positive factor in considering the destiny of nations. Men
continue to speak of the perils of war (in which numbers stand for
a great deal, but are not the exclusive element) as though the social
conscience of our own day were still the same as that of the Middle
Ages. In several respects, on the other hand, the thinner population
of France is one cause of its wealth, and therefore of its power.
Germany has a more numerous, but also a poorer population. And
I do not believe that the actual power of nations, on which their future
depends, consists in loading a people with arms after enfeebling it by
military expenditure, which from the year 1880 bps indicated a distinct
epidemic mania on the continent of Europe.
128 CRIMINAL SOCIOLOGY,
— As a preventive of murder in railway carriages,
it has been found that alarm signals and methods
of securing the carriage-doors from the inside, are
more effectual than penal codes.
IV. 7n the Legislative and Administrative Sphere.
— Wise testamentary legislation prevents murders
through the impatient greed of next-of-kin, as
in France during a former age, with what was
known as " succession powder." — A law to facilitate
the securing of paternal assent for the marriage
of children (as suggested by Herschel in his
" Theory of Probabilities ") in countries which require
the assent of both parents, and for affiliation and
breach of promise of marriage, with provision for
children born out of wedlock, are excellent as
against concubinage, infanticide, abortion, exposure
of infants, indecent assaults, and murders by
women abandoned after seduction. On this head
Bentham said that concubinage regulated by civil
laws would be less mischievous than that which the
law does not recognise but cannot prevent. — Cheap
and easy law is a preventive of crimes and offences
against public order, the person and property, as
I have already said. — The ancient Italian institution
of Advocate of the Poor, if substituted for the present
illusory assistance by the courts, would prevent many
acts of revenge. So also would a strict and speedy
indemnity for the victims of other men's crimes,
intrusted to a public minister when the injured
person is not able to resort to the law ; for as I have
maintained, with the approval of sundry criminal
sociologists, civil responsibility for crime ought to be
THE DATA OF CRIMINAL STATISTICS. 129
as much a social obligation as penal responsibility,
and not a mere private concern. — Simplification of
the law would prevent a large number of frauds,
contraventions, &c., for, apart from the metaphysical
and ironical assertion that ignorance of the law
excuses no man, it is certain that our forest of
codes, laws, decrees, regulations and so forth, leads
to endless misapprehensions and mistakes, and there-
fore to contraventions and offences. — Commercial
laws on the civil responsibility of directors, on bank-
ruptcy proceedings and the registration of share-
holders, on bankrupts' discharges, on industrial and
other exchanges, would do more than penal servitude
to prevent fraudulent bankruptcy. — Courts of honour,
recognised and regulated by law, would obviate duels
without having recourse to more or less serious
punishments. — A well organised system of con-
veyancing checks forgery and fraud, just as regis-
tration offices have almost abolished the palming
and repudiation of children, which were so common
in mediaeval times. Deputy Michelin, in order to
discourage bigamy, proposed in 1886 to institute in
the registers of births for every commune a special
column for the civil standing of each individual, so
that any one who contemplated marriage would have
to produce a certificate from this register, and thus
would be unable to conceal a previous marriage
which had not been dissolved by death or divorce. —
The form of indictment by word of mouth in penal
procedure has prevented many calumnies and false
charges. — Foundling and orphan homes, or, still
better, some less old-fashioned substitute, such as
130 CRIMINAL SOCIOLOGY.
lying-in hospitals and home attendance for young
mothers, might do much to prevent infanticide and
abortion, which are not checked by the severest
punishment. — Prisoners' aid societies, especially for
the young, might be useful as penal substitutes,
although much less so than is generally alleged,
with plenty of eloquence and little practical work.
There is always this strong objection to them, that
we ought to succour workmen who continue honest
in spite of their wretchedness before those who have
been in prison ; and again, in place of bestowing
patronage on released prisoners without distinction,
many of whom are incorrigible, we ought to select
the occasional criminals and criminals of passion,
who alone are capable of amendment ; and assisting
them we should avoid anything like police formalities.
As a matter of fact it appears that, even in England,
where these societies are most active, their inter-
vention, like all direct charity, is too far below the
needs of those for whom provision is necessary.
/ V. In the Sphere of Education. — It has been proved
that mere book education, whilst it is useful in render-
ing certain gross frauds more difficult, in extending a
knowledge of the laws, and above all in diminishing
improvidence, so characteristic of the occasional
criminal, is far from being the panacea of crime
which people imagined when they found in the
criminal statistics a large proportion of illiterate
prisoners. It must also be said that schools which
are not closely inspected are frequently hotbeds
of immorality. It is necessary, therefore, to rely
on the influence of a wider education, limited
THE DATA OF CRIMINAL STATISTICS. I31
though this may be in its turn. I do not mean a
mechanical instruction in moral maxims, appealing to
the intelligence without reaching the feelings, but
rather of the examples afforded by every kind of
social institution, by the government and the press,
by the school of the stage and of public entertain-
ments.— It would be well, however, to abolish certain
vulgar and sensual entertainments, and to substitute
for them wholesome amusements and exercises, public
baths, properly superintended, and so built as to
render private meetings impossible, cheap theatres,
and so forth. Thus the prohibition of cruel spectacles,
and the suppression of gambling houses, are excel-
lent penal substitutes. — The experimental method in
the teaching of children, which applies the laws of
physio-psychology, according to the physical and
moral type of each pupil, and by giving him less
of archaeology, and more knowledge serviceable in
actual life, by the mental discipline of the natural
sciences, which alone can develop in him a sense of
the actual, such as our classical schools only enfeeble,
would adapt men better for the struggle of existence,
whilst diminishing the number of those left without
occupation, who are the candidates of crime. — Many
ot the causes of crime would be nipped in the bud
by checking degeneration through physical education
of the young, as well as by preventing demoralisation
by means of the education of abandoned children, at
such institutions as the workhouse, ragged and indiis-
trial schools, so well developed in England — or, still
better, by the boarding out of children, so as to avoid
over-crowdins. — One class of inducements to crime
132 CRIMINAL SOCIOLOGY.
would be eliminated by restrictions imposed on
scandalous publications which concern themselves
exclusively with crime, having no other object than
to trade upon the most brutal passions, and which are
allowed to exist under an abstract conception of
liberty, save that the responsible conductors are
punished when the evil has been done. — Similarly
there ought to be some restriction upon the right
of admission to police-courts and assizes, where
our women hustle each other as the Roman women
of the decline scrambled to be present at the imperial
circus-shows, and where our young men and our
hardened criminals receive lessons in the art of
committing crin.es with greater smartness and pre-
caution.
The instances which I have given, and which might
be multiplied into a preventive code as long as the
penal code, prove to demonstration how large a part
is played by social factors in the genesis of crime,
and especially of occasional crime. But they prove
still more clearly that the legislator, by modifying
these causes, can influence the development of crime
within limits imposed by the competition of other
anthropological and physical factors. Quetelet was
right, therefore, when he said in this connection,
" Since the crimes committed every year seem to be
the necessity of our social organisation, and their
number cannot be diminished if the causes to which
they are due cannot be modified in a preventive sense,
it behoves legislators to recognise these causes, and to
eliminate them as far as possible. They must frame
THE DATA OF CRIMINAL STATISTICS. 1 33
the budget of crime as they frame that of the national
revenue and expenditure."
It must nevertheless be borne in mind that all this
will have to be done apart from the penal code ; for
it is true, however strange, that history, statistics, and
direct observation of criminal phenomena prove that
penal laws are the least effectual in preventing crime,
whilst the strongest influence is exercised by laws of
the economic, political, and administrative order.
In conclusion, the legislator should be convinced by
the teaching of scientific observation that social re-
forms are much more serviceable than the penal code
in preventing an inundation of crime. The legisla-
tor, on whom it devolves to preserve the health of the
social organism, ought to imitate the physician, who
preserves the health of the individual by the aid of
experimental science, resorts as little as possible, and
only in extreme cases, to the more forcible methods
of surgery, has a limited confidence in the problema-
tic efficiency of medicines, and relies rather on the
trustworthy processes of hygienic science. Only then
will he be able to avoid the dangerous fallacy, ever
popular and full of life, which Signor Vacca, Keeper
of the Seals, expressed in these words : " The less we
have recourse to preventive measures, the more severe
ought our repression to be." Which is like saying
that when a convalescent has no soup to pick up his
strength, we ought to administer a drastic drug.
It is precisely on this point that the practical, rather
than the merely theoretical, differences between the
positive and the classical schools of penal law be-
come evident. Whilst we believe that social reforms
134 CRIMINAL SOCIOLOGY.
and other measures suggested by a study of the
natural factors of crime are most effective in pre-
venting crime, legislators, employing the a priori
method of the classical school, have for many years
past been discussing proposed penal codes, whilst
they permit criminality to make steady progress. It
is another case of Duni Romce consulitur, Saguntutn
expugnatur.
And when the legislators find their Byzantine dis-
cussions on the "juridical entities " of crime and
punishment broken in upon by a recrudescence of
crime, or by a serious manifestation of some pheno-
menon of social pathology, then all they can do in their
perplexity and astonishment is to pass some new
repressive law, which for a moment stills the outcry of
public opinion, and remits the matter once more from
the acute to the chronic phase.
The positive theory of penal substitutes, apart from
any particular example, aims precisely at furnishing
a mental discipline for legislators, and bringing home
to them the duty of constant reinforcements of social
prevention, no matter how difficult it may be, before
the evil comes to a head, and forces them too late to a
course of repression which is as easy as it is fallacious.
No doubt it is vexatious and difficult, even in private
life, to be perpetually living up to rules of health ;
•and it is easier, if more dangerous, to forget them,
and to fly, when the mischief declares itself, to drugs
which are too frequently deceptive ; but it is just the
want of forethought, both public and private, which it
is so important to overcome. And as hygienic science
was not possible as a theory or as a practice until after
THE DATA OF CRIMINAL STATISTICS. T35
the experimental observations and physio-pathology
on the causes of disease, especially of epidemic and
infectious diseases, together with the discoveries of M.
Pasteur, who created bacteriology; so social hygiene as
against crime was only possible as a theory, and will
not be so as a practice, till the diffusion of the facts
of biology and criminal sociology relating to the
natural causes of crime, especially of occasional crime.
The great thing is to be convinced that, for social
defence against crime, as for the moral elevation of
the masses of men, the least measure of progress with
reforms which prevent crime is a hundred times more
useful and profitable than the publication of an entire
penal code.
When a minister introduces a law, for instance, on
railways, customs duties, wages, taxation, companies,
civil or commercial institutions, there are few who
think of the effect which these laws will have on the
criminality of the nation, for it is imagined that suffi-
cient has been done in this respect by means of re-
forms in the penal code. In the social organism, on
the other hand, as in individuals, there is an inevitable
solidarity, though frequently concealed, between the
most distant and different parts.
It is just from these laws of social physiology and
pathology that we derive the notion of penal substi-
tutes, which at the same time we must not dissociate
from the law of criminal saturation. For if it is true
that by modifying the social factors we can produce
an effect on the development of crime, and especially
of occasional crime, it is also true, unfortunately, that
in every social environment there is always a minimum
136 CRIMINAL SOCIOLOGY.
of inevitable criminality, due to the influence of the
other factors, biological and physical. Otherwise we
might easily fall into the opposite and equally fal-
lacious illusion of thinking that we could absolutely
suppress all crimes and offences. For it is easy to
reach on one side the empiric idea of penal terrorism,
and on the other side the hasty and one-sided conclu-
sion that to abolish some particular institution would
get rid of its abuses. The fact is that we must consider
before all things whether it is not a less evil to put up
with institutions, however inconvenient, and to reform
them, than to forfeit all the advantages which they
afford. And it must above all be borne in mind that
as society cannot exist without law, so law cannot
exist without offences against the law. The struggle
for existence may be fought by honest or economic
activity, or by dishonest and criminal activity. The
whole problem is to reduce to a minimum the more
or less criminal rufflings and shocks, yet without dis-
turbing "social order," amidst the indifference or
servility of a spiritless people, or resorting to police-
men and prisons on every slight occasion.
These general observations on penal substitutes in
connection with the law of criminal saturation are a
sufficient answer to the two chief objections raised
even by such as agree with me in theory.
It has been urged, in effect, that some of the penal
substitutes which I have enumerated have already
been applied, without preventing crime ; and again,
that there were some institutions which it would be
absurd to abolish because the removal of a prohibition
would also remove the contravention.
THE DATA OF CRIMINAL STATISTICS. I37
The aim of penal substitutes is not to render all
crimes and offences impossible, but only to reduce
them to the least possible number in any particular
physical and social environment. There are crimes
of piracy to this day, but the use of steam in naviga-
tion has, none the less, been more effectual than all
the penal codes. Murders still occur, though very
rarely, on the railways ; but it is none the less true
that the substitution of the railways and tramways
for the old diligences and stagecoaches has decimated
highway robberies, with or without murder. Divorce
does not eliminate wife-murder as a consequence of
adultery, but it diminishes its frequency. Similarly,
after the protection which is afforded to abandoned
children, we shall not be able to close the tribunals
through the absence of crimes and offences, but it is
certain that the supply of these will be notably
diminished.
As for the second objection, I was careful to say, in
regard to existing institutions, that we must naturally
consider whether the evil arising from violating them
or that which would be due to their suppression
is the greater. But my main contention is that by
reforming these institutions we can do more to pre-
vent crime than by leaving them as they happen to
be, or at most granting them the fallacious protection
of one or two articles in the penal code.
I will myself add a criticism of the theory of penal
substitutes, and it is that they are difficult of applica-
tion. We have only to think of the immense force of
inertia in the habits, traditions and interests which
have to be overcome before we can secure the appli-
STATE NORllALSQiOUL,
138 CRIMINAL SOCIOLOGY.
cation, not of all, but of any one of the penal substi-
tutes which I have enumerated. And some of these
are not siniple, or based on a single principle, but
comprise an assemblage of co-ordinated refoims, like
the prevention of drunkenness, the protection of
abandoned children, the accessibility of justice, and
so forth.
But if legislators must take into account the actual
conditions of the people, and adapt themselves to
conditions of time and place, it is the business of
science to indicate the goal, however distant and diffi-
cult to reach. The first condition of attaining legis-
lative and social reforms is that they should impress
themselves beforehand on the public conscience ; and
this is not possible if science, in spite of transitory
difficulties, does not resolutely open up the road
which has to be travelled; without any compromise
with eclecticism, which means for science what hybrid-
ism means for organic life.
Two other objections may be made on the ground
of principle to what has been said. The first is that
this system of penal substitutes is only the familiar
process of prevention of crime. The second is that
the criminal expert need not concern himself with it,
since prevention is only a question of good govern-
ment, which has nothing to do with the study of
crimes and punishments.
My answer to the second objection is that the
importance of taking measures to prevent crime has
certainly been dwelt upon, especially from the time
of Montesquieu and Beccaria, but it has been only by
THE DATA OF CRIMINAL STATISTICS. I39
way of platonic and isolated declaration, with no such
systematic development as might have given them
practical application, based on experimental observa-
tions. Moreover, this prevention has always been
held as subsidiary to repression, whereas we have
arrived at the positive conclusion that prevention,
instead of being a mere secondary aid, should
henceforth become the primary defensive function of
"society, since repression has but an infinitesimal
influence upon criminality.
Furthermore, it is important to observe the pro-
found distinction between ordinary prevention and
penal substitutes ; or in other words, between preven-
tion by police and prevention by society. The former
merely seeks to prevent crime when its germ is ah-eady
developed and active, and it nearly always employs
methods of direct coercion, which, being themselves
repressive in their character, are often inefficacious,
even if they do not provoke additional offences.
Social prevention, on the other hand, begins with the
original sources of crime, attacking its biological,
physical, and social factors, by methods which are
wholly indirect, and which rest upon the free play of
psychological and sociological laws.
Science, as well as the making of laws, has hitherto
been too much influenced by a preference for repres-
sion, or at least for administrative police prevention.
•' There have been authoritative works and learned
folios," says Ellero, " which dealt not only with
punishment, but also with torture ; there has been
none dealing with the provision of means for providing
an alternative to punishment"
140 CRIMINAL SOCIOLOGY.
After the general observations of Montesquieu,
Filangieri, Beccaria, and more recently Tissot, on the
influence of religion, climate, soil, and the form of
government, upon the penal system rather than the pre-
vention of crime, the authors who studied prevention
with wider and more systematic views (excluding the
criminal sociologists who have more or less taken the
positive point of view), are Bentham, Romagnosi,
Barbacovi, Carmignani, Ellero, Lombrosp, and a few
Englishmen, who, without making much of the theory,
have made many practical suggestions of preventive
reform. But even these writers either confine them-
selves to general synthetic considerations, like Romag-
nosi and Carmignani, or else, entering the domain of
facts, and even accepting the idea of social prevention,
have made too little of those physio-psychological
laws as the natural factors of crime, which alone can
furnish a method of regulating human activity. And,
when all is said and done, they have clung to punish-
ment as the chief method of prevention.
Hence their teaching and their propositions have
had no weight with legislators, for these latter had
not been convinced, as only the criminal sociologist
could convince them, that punishments are far from
having the deterrent force commonly attributed to
them, and that crime is not the outcome of free will,
but rather a natural phenomenon which can only
disappear or diminish when its natural factors are
eliminated.
The legislators for their part have not only neglected
the definite teaching of these authors with more than
ordinary insight, but they have also enacted what are
THE DATA OF CRIMINAL STATISTICS. I41
really penal substitutes in a clumsy and unscientific
manner.
We have thus studied the data of criminal statistics
in their theoretical and practical relations with criminal
sociology, and come to the conclusion that, since
crime is a natural phenomenon, determined by factors
of three kinds, it answers on that account to a law of
criminal saturation, whereby the physical and social
environment, aided by individual tendencies, here-
ditary or acquired, and by occasional impulses, neces-
sarily determine the extent of crime in every age and
country, both in quantity and quality. That is to say,
the criminality of a nation is influenced in the natural
sphere by the bio-psychical conditions of individuals
and their physical environment, and, in the social
sphere, by economic, political, administrative and
civil conditions of laws, far more than by the penal
code.
Nevertheless the execution of punishment, though
it is the less important part of the function of social
defence, which should be carried out in harmony with
the other functions of society, is always the leist and
inevitable auxiliary.
And this entirely agrees with the universal law of
evolution, in virtue of which, amidst the variation of
animal and social organisms, antecedent forms are not
wholly eliminated, but continue as the basis of the
forms which succeed them. So that if the future evo-
lution of the social administration of defence against
crime is to consist in the development of the primitive
forms of direct physical coercion into the higher forms
of indirect psychical discipline of human activity, this
142 CRIMINAL SOCIOLOGY.
will not imply that the primitive forms must entirely
disappear, especially for the gravest crimes, which, in
the biological and psychological conditions of those
who commit them, take us back to the primitive
epochs and forms of individual and social violence.
I end with a modification of an old comparison
which has been much abused. Crime has been com-
pared to an impetuous torrent which ought to be
enclosed between the dykes of punishment, lest
<;ivilised society should be submerged. I do not deny
that punishments are the dykes of crime, but I assert
that they are dykes of no great strength or utility.
All nations know by sad and chronic experience that
their dykes cannot save them from inundations ; and
so our statistics teach us that punishments have but
an infinitesimal power against the force of criminality,
when its germs are fully developed.
But as we can best protect ourselves against inun-
dations by obeying the laws of hydrostatics and
hydrodynamics, by timbering the banks near the
source of the stream, and by due rectilineation or
excavation along its course and near its mouth, so, in
order to defend ourselves against crimes, it is best to
observe the laws of psychology and sociology, and to
avail ourselves of social substitutes, which are far
more efficacious than whole arsenals of repressive
measures.
CHAPTER III.
PRACTICAL REFORMS.
The data of criminal anthropology and statistics, and
the positive theory of responsibility which flows from
them, although they have been systematised only by
the positive school, are nevertheless too constantly in
evidence not to have made their way into courts and
parliaments.
I have already spoken of penal jurisprudence in its
relations with criminal sociology, and may now cite
a few examples of the more or less direct and avowed
influence of the new data on penal legislation.
The legislators of to-day, vaguely impressed by
statistical and biological, ethnographical and anthro-
pological data, and still imbued with the old prejudice
of social and political artificiality, were at first hurried
into a regular mania for legislation, under which every
newly observed social phenomenon seemed to demand
a special law, regulation, or article in the penal code.
Then, as Spencer has said in one of his most brilliant
essays, the citizen finds himself in an inextricable
network of laws, decrees, regulations and codes,
which surround him, support him, fetter and bind
him, even before his birth and after his death. For
<43
144 CRIMINAL SOCIOLOGY,
those whom M. Bordier calls the gardeners and truss-
makers of society, forgetting the natural character of
social phenomena, picture society as so much paste,
to which the cook may give any form he pleases,
whether pie-crust, dumpling, or tart.
Hence we see on all sides, side by side with dogma
in the classical sciences of law, economy, and politics,
empiricism in the laws themselves. And that is why
the practical defects and constant impotence of repres-
sion in penal justice are the most eloquent argu*
ments of the experimental school, which extends and
strengthens its own theoretical inductions by the
practical reforms which it suggests.
A first example of the influence more directly
exercised by the new ideas in penal legislation is
furnished by the proposal already realised in the
penal laws of Holland, Italy, &c., of two parallel
systems of punishment by detention — one for the
graver and more dangerous crimes, and the other,
" simple detention," or custodia honesta (" as a first-
class misdemeanant "), for contraventions, involuntary
offences, and crimes not inspired by the baser
passions.
Similarly, the enumeration contained in certain
codes, as in Spain, and in the old Mancini draft
of a penal code in Italy, of the main aggravating
and extenuating circumstances common to all crimes
and offences, such as the antecedents of the accused,
venial or inexcusable passion, repentance and confes-
sion of a crime, extent of injury or the like, is only
an elementary and empiric form of the biological and
psychological classification of criminals.
PRACTICAL REFORMS, I45
Thus also the foundation of asylums for the deten-
tion of lunatic criminals, in spite of their being ac-
quitted of moral responsibility ; the more and more
vigorous, but often too empirical measures against
the progressive increase of recidivism ; the proposed
repressive measures as alternatives to short terms of
detention ; the reaction against the exaggerations of
cellular confinement, which I regard as one of the
aberrations of the nineteenth century, are all manifest
proofs of the more or less avowed and logical influence
of the data of criminal biology and sociology on con-
temporary penal legislation.
These practical reforms, which, when grafted on
the old trunk of the classical theories of crime and
punishment, are mere arbitrary and misplaced ex-
pedients, really represent, when they are logically
co-ordinated and completed, the new system of social
defence againt crime, which is based on the scientific
data and inductions of the positive school, and which
it is therefore necessary for us to trace out from its
foundations.
I.
In the first place, whilst the positive theories largely
reduce the practical importance of the penal code, yet
they do more to increase the importance of the rules
of penal procedure, which are intended to give prac-
tical and daily effect to penal measures, for the
defence of society against criminals. For, as I main-
tained in the Italian Parliament, if the penal code is
a code for evil-doers, that of penal procedure is a code
146 CRIMINAL SOCIOLOGY.
for honest people, who are placed on their trial but
not yet found guilty.
This is all the more true because, if it is possible
to have penal codes whose machinery of psycho-
logical coercion is planted on a platonic platform
of penitentiary systems written out fair in their
symmetrical clauses, but still non-existent, as is
the case in Italy, this is not possible in regard to
penal procedure. The regulations of the code of
" instruction " must of necessity be carried out by
a judicial routine. The penal code may remain a
dead letter, as, for instance, when it says that punish-
ment by detention is to be inflicted in prisons con-
structed with cells ; for, happily, the cells necessary
in Italy for fifty or sixty thousand prisoners (or in
France for thirty or forty thousand) are too ex-
pensive to admit of the observance of these articles
of the penal code — which nevertheless have cost
so many academic discussions as to the best peni-
tentiary system : "Auburn," "Philadelphian," "Irish,"
or " progressive." In the organisation of justice, on
the other hand, every legal regulation has its im-
mediate application, and therefore reforms of pro-
cedure produce immediate and visible results.
It may be added that, if the slight deterrent
influence which it is possible for punishment to
exercise depends, with its adaptation to various
types of criminals, on the certitude and prompti-
tude of its application, the others depend precisely
and solely on the organisation of the police, and
of penal procedure.
Passing over special and technical reforms which
PRACTICAL REFORMS. I47
even the classical experts in crime demand in the sys-
tems of procedure, and often rather on behalf of the
criminals than on behalf of society, we may connect the
positive innovations in judicial procedure with these
two general principles : — (i) the equal recognition of
the rights and guarantees of the prisoner to be
tried and of the society which tries him ; and (2) the
legal sentence, whereof the object is not to define the
indeterminable moral culpability of the prisoner,
nor the impersonal applicability of an article in the
penal code to the crime under consideration ; but the
application of the law which is most appropriate to
the perpetrator of the crime, according to his more
or less anti-social characteristics, both physiological
and psychological.
From Beccaria onward, penal law developed by
reaction against the excessive and arbitrary severity
of the Middle Ages — a reaction which led to a pro-
gressive decrease of punishments. Similarly official
penal procedure in the nineteenth century has been,
and continues to be, a reaction against the mediaeval
abuses of the inquisitorial system, in the sense of
a progressive increase of individual guarantees against
the domination of society.
As we considered it necessary in the interests of
social self-defence, in the case of criminal law, to
combat the individualist excesses of the classical
school, so in regard to penal procedure, whilst
admitting the irrevocable guarantees of individual
liberty, secured under the old system, we think it
necessary to restore the equilibrium between indi-
vidual and social rights, which has been disturbed
148 CRIMINAL SOCIOLOGY,
by the many exaggerations of the classical theories,
as we will now proceed to show by a few examples.
The presumption of innocence, and therewith the
more general rule, "in dubio pro reo," is certainly
based on an actual truth, and is doubtless obligatory
during the progress of the trial. Undetected criminals
are fortunately a very small minority as compared
with honest people; and we must consequently regard
every man who is placed on his trial as innocent until
fhe contrary has been proved.
But when proof to the contrary is evident, as, for
instance, in the case of a flagrant crime, or of confes-
sion confirmed by other elements in the trial, it
seems fit that the presumption should cease in view
of absolute fact ; and especially when we have to do
with habitual criminals.
Even the criminals of this class whom I have ques-
tioned recognise a presumption of the opposite kind.
"They have convicted me," said an habitual thief,
" because they knew I might have done it, without
any proof; and they were in the right You will
never be convicted, because you never stole ; and
if we happen to be innocent once in a way, that
must be set against the other times when we are
not discovered." And the ironical smile of several
of these prisoners, condemned on circumstantial
evidence, reminded me of a provision which was once
proposed in the Italian penal code, under which a
person surprised in the attempt to commit a crime,
If it was not known what precise form his crime would
have taken, was to be found guilty of a less serious
offence. This might be good for an occasional criminal.
PRACTICAL REFORMS. I49
or a criminal of passion, but would be absurd and
dangerous for habitual criminals and old offenders.
The exaggerations of the presumption " in dubio
pro reo " are due to a sort of mummification and
degeneracy of the legal maxims, whereby propo-
sitions based upon observation and generalisation
from existing iacts continue in force and are
mechanically applied after the facts have changed
or ceased to exist.
What reason can there be for extending provisional
freedom, pending an appeal, to one who has already
been found guilty and liable to punishment for a
crime or offence, under sentence of a court of first
instance } To presume the innocence of every one
during the first trial is reasonable ; but to persist in
a presumption which has been destroyed by facts,
after a first condemnation, would be incomprehensible
if it were not a manifestly exaggerated outcome of
classical and individualist theories, which can only
see a " victim of authority " in every accused person,
and in every condemned person also.
Another point is that of acquittal in case of an
equality of votes, especially where born and habitual
criminals are concerned. I think it would be much
more reasonable to restore the verdict of "not proven,"
which the Romans admitted under the form of " non
liquet," as an alternative to " absolvo " and " con-
demno," and which may be delivered by juries in
Scotland. Every one who has been, put on his trial
is entitled to have his innocence declared, it it has
been actually proved. But if the proofs remain
incomplete, his only right is not to be condemnedi
150 CRIMINAL SOCIOLOGY.
since his culpability has not been proved. But it
is not the duty of society to declare him absolutely
innocent, when suspicious circumstances remain. In
this case the only logical and just verdict is one of
" not proven." Such a verdict would obliterate the
shadow of doubt which rests on persons who have
been acquitted, by reason of the identical verdicts
in cases of proved innocence and inadequacy of
proof, and on the other hand it would avoid the
tendency to compromise, under which judges and
juries, in place of acquitting when the proof is insuffi-
cient, sometimes prefer to convict, but make the
punishment lighter.
Another case of exaggeration in the presumption
of innocence is afforded by the regulations as to
contradictory or irregular verdicts, which may be
corrected only when there has been a conviction ;
whilst if the error has led to the acquittal of an
accused person, it cannot be put right. The in-
fluence of the individualist and classical school is
here manifest, for, as M. Majno says, " the justice of
sentences rests as much on just condemnations as
upon just acquittals." If the individual has a right
to claim that he shall not be condemned through the
mistake or ignorance of his judges, society also has
the right to demand that those whose acquittal is
equally the result of mistake or ignorance shall not
be allowed to go free.
On the same ground of equilibrium between the
rights of the individual and the rights of society,
which the positive school aims at restoring, something
must be said as to the regulation by which, if the
PRACTICAL REFORMS. I5I
appeal is brought by a condemned person, the punish-
ment cannot be increased. One classical expert in an
official position would not even give the right to appeal
at all.
Now if appeal is allowed for the purpose of correct-
ing possible mistakes on the part of the original
judges, why must we allow this correction in mitiga-
tion, and not in increase of punishment? And to
this practical assurance of the condemned person that
he has nothing to fear from a second trial, which
seems to have been given to him for the sole purpose
of encouraging him to abuse his power, since appeals
are too often a mere dilatory pretext, there is a pen-
dant in the right of the public prosecutor to demand
a re-hearing, but only " in the interest of the law, and
without prejudice to the person acquitted."
A last instance of the same kind of protective
regulation for the protection of evil-doers is to be
found in the new trials which are permitted only in
cases where there has been a condemnation, and that
on arbitrary and superficial grounds. Most of the
classical commentators on procedure do not dream of
the possibility of revision in the case of acquittals,
and yet, as Majno justly says, " even if he has profited
by false witness, forged documents, intimidation or
corruption of a judge, or any other offence, the
acquitted person calmly enjoys his boast, and can
even plume himself on his own share in the business
without fear of being put on his trial again." The
Austiian and German codes of procedure admit
revision in cases of acquittal ; and the positive rule
in this connection ought to be that a case should be
152 CRIMINAL SOCIOLOGY,
re-heard when the sentence of condemnation or
acquittal is evidently erroneous.
From the same principle of equality between the
guarantees of the individual criminal and of honest
society we infer the necessity of greater strictness in
the idemnification of the victims of crime. For the
platonic damages now added to all sorts of sentences,
but nearly always ineffectual, we believe that a strict
obligation ought to be substituted, the operation of
which should be superintended by the State, in the
same way as the other consequence of the crime, which
is called the punishment. I will return to this when I
trace the outline of the positive system of social
defence against criminals.
The positive school, precisely because it aims at an
equilibrium between individual and social rights, is
not content with taking the part of society against the
individual. It also takes the part of the individual
against society.
In the first place, the very reforms which we pro-
pose for the indemnification of the victims of crime,
regarded as a social function, as well as the operation
of the punishment, have an individualist character.
The individualism of the classical school was not even
complete as a matter of fact ; for the guarantees
which it proposed took account of the individual
criminal only, and did not touch his victims, who are
also individuals, and far more worthy of sympathy
and protection.
But, beyond this, we may point to three reforms as
an instance of the positive and reasonable guarantees
of the individual against the abuse or the defects of
PRACTICAL REFORMS. I53
social authority. Of these reforms two have been put
forward by the classical school also, but, like criminal
lunatic asylums, alternatives for short terms of im-
prisonment, and so on, they have generally remained
inoperative, for they are not in harmony with the bulk
of traditional theory, and only in a positive system
have they any organic and efficacious connection with
the data of criminal sociology. I refer to the exercise
of popular opinion, the correction of judicial mistakes,
and the transfer of sundry punishable offences to the
category of civil contraventions.
The institution of a Ministry of Justice corresponds
to the demands of general sociology, which exacts
division of labour even in collective organisms, and to
those of criminal sociology, which requires a special
and distinct organ for the social function of defence
against crime. Indeed it has become indispensable
as a necessary judicial organ, even in nations like
England which have not yet formally established it
So that, far from confounding the Public Prosecutor
with the judicial body, we see the necessity of giving
to this office a more elevated character and a distinct
personality, with ampler guarantees of independence
of the executive power.
Nevertheless the action of the Ministry of Justice,
as now commonly organised, may be inadequate for
the protection of the victims of crime, either indirectly
through the insufficient number of its functionaries, or
directly, through the functional defect insisted on by
M. Gneist, " party spirit or prejudice in favour of the
governing powers." The latter, indeed, notwith-
154 CRIMINAL SOCIOLOGY.
Standing M. Glaser's objection that government
pressure is impossible, have no need to give special
instructions, of a more or less compromising character,
in order to exercise a special influence in any par-
ticular case. There is no necessity for anything
beyond the conservative spirit natural to every insti-
tution of the State, or the principle of authority
which is a special form of it, apart from the less
respectable motives of interested subservience to
such as are in office and dispense promotion.
Hence it will be useful, in initiating criminal pro-
ceedings, to add to the action of a Public Prosecutor
(but not to substitute for him) the action of private
persons.
Criminal proceedings by citizens may take two
forms, according as they are put in operation only by
the injured person or by any individual.
The first mode, already allowed in every civilised
nation, needs amendment in various ways, especially
in regard to the subordination of the penal action to
the plaint of the injured person, which ought to be
restrained, and even abolished. In fact, whereas this
right has hitherto been regulated by law only in view
of the legal and material gravity of the offence, it
should in future be made to depend on the perversity
of the offender ; for society has a much greater
interest in defending itself against the author of a
slight offence if he is a born criminal, or a criminal
lunatic, than in defending itself against the author of
a more serious crime, if he is an occasional criminal
or a criminal of passion. And the necessity of
bringing a private action in regard to certain offences
PRACTICAL REFORMS. 155
is only a source of abuses, and of demoralising
bargains between offenders and injured persons.
On the other hand, this prosecution by a citizen
who has been injured by a crime or an offence ought
to have more efficacious guarantees, either for the
exercise of the rights of the injured person, or against
the possible neglect or abuse of the Public Prosecutor.
If, indeed, he is obliged to take up every charge and
action, he is also (in Italy and France, but not in
Austria or Germany, for instance) the only authority
as to penal actions, and consequently as to penal
judgments.
In Italy, out of 264,038 cases which came before
the Public Prosecutor in 1880, six per cent, or 16,058,
were " entered on the records," or, in other words, they
were not followed up ; and in 1889, out of a total of
271,279, the number of unprosecuted cases was 27,086,
or ten per cent. That is, the number had almost
doubled in ten years.
In France the annual average of plaints, charges,
and trials with which the Public Prosecutor was con-
cerned stood at 114,181 in the years 1831-5 ; at
371,910 in 1876-80; and at 459,319 in 1887. And
the cases not proceeded with were 34,643, or thirty
per cent., in 1831-5 ; 181,511, or forty-eight per cent.,
in 1876-80; and. 239,061, or fifty-two per cent, in
1887. That is to say, their actual and relative numbers
were nearly doubled in fifty years.
Is it possible that in ten, or even in fifty years, the
moral conditions of anation, and its inclination to bring
criminal charges, should be so modified that the
number of cases devoid of foundation should have
156 CRIMINAL SOCIOLOGY.
been almost doubled ? It is certain that in different
nations and different provinces there are varying
degrees of readiness to bring charges against law-
breakers rather than to take personal vengeance.
But in one and the same nation this vindictive spirit
and this readiness to bring charges cannot vary so
greatly and rapidly, especially within ten years, as in
Italy ; for the persistence of popular sentiment is a
well-known fact. It is rather in the disposition of the
functionaries of the Ministry of Justice, which is far
more variable, that we must look for an explanation
of this fact, which is also accounted fSr by the ten-
dency to diminish the statistical records of crime.
Now, why must the citizen who lodges a complaint
of what he considers a crime or offence submit to the
decision of the Public Prosecutor, who has allowed
his action to drop ^ This consideration has led to
the subsidiary penal action, already allowed in
Germany and Austria, and introduced in the draft
codes of procedure in Hungary, Belgium, and France,
which is a genuine guarantee of the individual as
against the social authority. We must not, however,
deceive ourselves as to the efficacy or frequency of its
d'^eration, especially in the Latin nations, which have
none too much individual initiative.
The second form of private prosecution is that of
the " popular punitive action," which existed in the
Roman penal law — which, it may be said in passing,
is not so insignificant as the classical school has
supposed. The statement of M. Carrara, too often
repeated, that " The Romans, who were giants in
civil law, are pigmies in penal law," is not in my
PRACTICAL REFORMS. 1 57
opinion correct It is true that the Roman penal law
was not organised in a philosophical system ; but it ex-
hibits throughout the wonderfully practical judgment
of the Roman jurisconsults ; and indeed one cannot
see why they should have lost this sense when dealing
with crimes and punishments. On the other hand,
I am inclined to think that the importance of the
Roman civil law has been exaggerated, and that the
spirit of the corpus jtiris springs from social and
economic conditions so different from our own that
we can no longer feel bound to submit to its tyranny.
The penal law of the Romans, however, contains
several maxims based on unquestionable common
sense, which deserve to be rescued from the oblivion
to which they have been condemned bj' the dogmatism
of the classical school. Examples of these are the
popular punitive action ; the distinction between dolus
bonus and dohis malus, which belongs to the theory of
motives ; the stress laid upon intentions rather than
upon their actual outcome ; the law oi exceptio veritatis ■
in cases of slander, which under the pharisaism of the
classical theory serves only to give immunity to
knaves ; the penalty of twofold or threefold restitu-
tion for theft, in place of a few days or weeks in
prison ; the condemnation of the most hardened
criminals to the mines, instead of providing them with
V.ells, as comfortable as they are ineffectual — apart
from the consideration that the firedamp in mines and
the unhealthiness of penal settlements would be less
mischievous if their victims were the most dangerous
criminals rather than honest miners and husbandmen.
To return to the popular penal action, it is so com-
12
158 CRIMINAL SOCIOLOGY.
monly advocated, even by the classical school, that it
is necessary to say another word on the subject.
Gneist, from his special point of view, proposed
that this action should be introduced into penal
procedure, as against electoral and press offences,
offences against the law of public meetings and asso-
ciations, and the abuse of public authority. But I
consider that this action would be a necessary guaran-
tee, in the case of all crimes and offences, for a
reasonable and definite adjustment of the rights of
the individual and of society.
Another reform, tending to a more effective guaran-
tee of individual rights, is the revision of judicial
errors in the interests of all who are unjustly con-
demned or prosecuted. Such a reform has been
advocated also by several members of the classical
school ; but it seemed only too likely to remain with
them a mere benevolent expression of opinion ; for
it can only be carried into effect by curtailing im-
prisonment, and by a more frequent and stringent
infliction of fines, as advocated by the positive school.
Sanctioned in some special cases, as an exceptional
measure — as, for instance, in the last century by the
Parliament of Toulouse, and in our age by the Eng-
lish Parliament— compensation for judicial errors was
rendered necessary in France at the end of the eigh-
teenth century, after a series of unjust condemnations,
even death sentences, which led Voltaire and Beccaria
to demand the abolition of capital punishment. In
1781 the Society of Art and Literature at Chaions-
sur-Marne offered a prize for an essay on the subject,
and awarded it to Brissot de Warville, for his work,
PRACTICAL REFORMS, 159
** Le Sang Innocent Veng6." In the records of the
Etats G^neraux there were many votes in favour of
this reform, which Louis XVI. caused to be intro-
duced on May 8, 1788. In 1790 Duport brought in
a measure in the Constituent Assembly ; but it was
rejected after a short discussion in February, 1791,
during which the same practical objections were urged
as have been repeated up to the present time. Never-
theless, the Convention decreed special indemnities,
as, for instance, a thousand francs in 1793 ^o"* one
Busset, " for arbitrary imprisonment and prosecu-
tion." In 1823 the above-named Society at Chalons-
sur-Marne proposed the same subject for an essay ;
and it has been the object of sundry proposals,
all rejected, as in 1867 during the discussion on
criminal appeals, on amendments moved by Jules
Favre, Richard, and Ollivier ; and again in 1883 by
Depute Pieyre, and in 1890 by. D^put6 Reinach.
This reform has been advocated by Necker,
amongst other writers, in his memoir on " Financial
Administration in France," and by Pastoret, Voltaire,
Bentham, Merlin, Legraverend, Helie, Tissot, and
more comprehensively by Marsangy in his " Reform
of the Criminal Law" (1864). Marsangy advocated
many other practical reforms which have since been
adopted, in substitution for the objectionable short
terms of imprisonment. More recently the subject
has been treated in France by the magistrates Ber-
nard, Pascaud, Nicolas, Giacobbi, and by the Attorney-
Generals Molines, Jourdan, Houssard, Dupry, Bujard,
in their inaugural addresses.
In Italy there was a notable precedent for this
l6o CRIMINAL SOCIOLOGY.
reform in the Treasury of Fines, established for Tus-
cany in 1786, and for the kingdom of the Two Sicilies
in the penal code of 18 19, for the purpose of creating
a fund for compensation in cases of judicial error. In
1886 Deputy Pavesi brought in a measure which was
not discussed; and this indemnification, which had
already been proposed in 1873 by De Falco, keeper
of the seals, in his draft of an Italian penal code, was
not included in subsequent Bills, mainly on account
of the financial difficulties. Amongst writers on
criminology, it was advocated in Italy by Carrara,
Pessina, and Brusa ; in Germany by Geyer and
Schwarze ; in Belgium by Prins and others, and more
recently by M. Garofalo, in his report to the third
National Congress on Law, at Florence, in September,
1891.
Amongst existing laws, indemnification for judicial
errors, whether limited to cases in which the inno-
cence of condemned persons can be proved, or ex-
tended to persons wrongfully prosecuted, is included
in the penal codes of Hungary and Mexico, and by
special laws in Portugal (1884), Sweden (1886), Den-
mark (1888), and especially in Switzerland, in the
cantons of Fribourg, Vaud, Neuch^tel, Geneva,
B^le, and Berne.
The legal principle that the State ought to indem-
nify material and moral injury inflicted by its func-
tionaries, through malice or negligence, on a citizen
who has done nothing to subject himself to prosecu-
tion or condemnation, cannot be seriously contested.
But the whole difficulty is reduced to deciding in
what cases the right to indemnification ought to be
PRACTICAL REFORMS. l6l
recognised, and then to providing a fund out of which
the State can discharge this duty.
For the latter purpose it would be necessary to
include an adequate sum in the Budget. This was
done in Bavaria, in 1888, by setting apart 5,000 marks
annually ; and the first who profited by this provision
received a pension of 300 marks per annum, after being
rendered incapable of work by seven years' imprison-
ment for a crime which he had not committed. But
if the policy of retrenchment imposed on the European
States by their insane military expenditure and their
chronic wars prevents the carrying out of this pro-
posal, there is the Italian precedent of the Treasury
of Fines, which, with the fines inflicted, or which ought
to be inflicted on convicted persons, and the product
of prison labour, would provide the necessary amount
for the indemnities which the State ought to pay to
innocent persons who have been condemned or prose-
cuted, as well as to the victims of offences.
As for the cases in which a right to indemnification
for judicial errors ought to be acknowledged, it seems
to me evident in the first place that we must include
those of convicted persons found to be innocent
on a revision of the sentence. Amongst persons
wrongfully prosecuted, I think an indemnity is due
to those who have been acquitted because their action
was neither a crime nor an offence, or because they
had no part in the action (whence also follows the
necessity of verdicts of Not Proven, so as to distinguish
cases of acquittal on the ground of proved innocence)
— always provided that the prosecuted persons have
not given a reasonable pretext for their trial by their
l62 CRIMINAL SOCIOLOGY.
own conduct, or their previous relapse, or their
habitual criminality.
The third proposition of the positive school in
regard to individual guarantees, which was also ad-
vanced by M. Puglia, is connected with reform of the
penal code, and especially with the more effectual
indemnification of the victims of crime. The object
is to prune the long and constantly increasing list of
crimes, offences, and contraventions of all acts which
result in slight injury, committed by occasional
offenders, or " pseudo-criminals " — that is, by normal
persons acting merely with negligence or impru-
dence.
In these cases the personal and social injury is not
caused maliciously, and the agent is not dangerous,
so that imprisonment is more than ever inappropriate,
unjust, and even dangerous in its consequences.
Deeds of this kind ought to be eliminated from the
penal code, and to be regarded merely as civil offences,
as simple theft was by the Romans ; for a strict
indemnification will be for the authors of these deeds
a more effectual and at the same time a less de-
moralising and dangerous vindication of the law than
the grotesque condemnation to a few days or weeks
in prison.
It will be understood that the classical theory of
absolute and eternal justice cannot concern itself with
these trifles, which, nevertheless, constitute two-thirds
of our daily social and judicial existence ; for, accord-
ing to this theory, there is always an offence to be
visited with a proportionate punishment, just as with
a murder, or a highway robbery, or a slanderous word.
PRACTICAL REFORMS. 163
But for the positive school, which realises the actual
and practical conditions of social and punitive justice,
there is on the other hand an evident need of relieving
the codes, tribunals, and prisons from these microbes
of the criminal world, by excluding all punishments
by imprisonment for what Venturi and Turati happily
describe as the atomic particles of crime, and by
relaxing in some degree that monstrous network of
prohibitions and punishments which is so inflexible
for petty transgressors and offenders, but so elastic
for serious evil-doers.
II.
The reforms which we propose in punitive law
are based on the fundamental principle already
established on the data of anthropology and criminal
statistics.
If the ethical idea of punishment as a retribution
for crime be excluded from the repressive function of
society, and if we regard this function simply as a
defensive power acting through law, penal justice can
no longer be squared with a minute computation of
the moral responsibility or culpability of the criminal.
It can have no other end than to prove, first, that the
person under trial is the author of the crime, and,
then, to which type of criminals he belongs, and, as a
consequence, what degree of anti-social depravity and
re-adaptability is indicated by his physical and mental
qualities.
The first and fundamental inquiry in every criminal
164 CRIMINAL SOCIOLOGY.
trial will always be the verification of the crime and
the identification of the criminal.
But when the connection of the accused and the
crime is once established, either the accused produces
evidence of his honesty, or of the uprightness of his
motives — the only case in which his acquittal can be
demanded or taken into consideration — or else it is
proved that his motives were anti-social and unlawful,
and then there is no place for those grotesque and
often insincere contests between the prosecution and
the defence to prevent or to secure an acquittal,
which will be impossible whatever may be the psycho-
logical conditions of the criminal. The one and
only possible issue between the prosecution and the
defence will be to determine, by the character of the
accused and of his action, to what anthropological
class he belongs, whether he is a born criminal, or
mad, or an habitual or occasional criminal, or a
criminal of passion.
In this case we shall have no more of those combats
of craft, manipulations, declamations, and legal de-
vices, which make every criminal trial a game of
chance, destroying public confidence in the adminis-
tration of justice, a sort of spider's web which catches
flies and lets the wasps escape.
The crime will always be the object of punitive law,
even under the positive system of procedure ; but,
instead of being the exclusive concern of the judge it
will only be the ground of procedure, and one symp-
tom amongst others of the depravation and re-
adaptability of the criminal, who will himself be the
true and living subject of the trial. As it is, the whole
PRACTICAL REFORMS. 165
trial is developed from the material fact ; and the
whole concern of the judge is to give it a legal defini-
tion, so that the criminal is always in the background,
regarded merely as the ultimate billet for a legal
decision, in accordance with some particular article in
the penal code — except that the actual observance of
this article is at the mercy of a thousand accidents of
which the judge knows nothing, and which are all
foreign to the crime, and to the criminal.
If we rid ourselves of the assumption that we can
measure the moral culpability of the accused, the
whole process of a criminal trial consists in the
assemblage of facts, the discussion, and the decision
upon the evidence. For the classical school, on the
other hand, such a trial has been regarded as a
succession of guarantees for the individual against
society, and, by a sort of reaction against the methods
of legal proof, has been made to turn upon the private
conviction, not to say the intuition, of the judge and
counsel.
A criminal trial ought to retrace the path of the
crime itself, passing backward from the criminal
action (a violation of the law), in order to discover
the criminal, and, in the psychological domain, to
establish the determining motives and the anthro-
pological type. Hence arises the necessity for the
positive school of reconsidering the testimony in a
criminal case, so as to give it its full importance, and
to reinforce it with the data and inferences not only of
ordinary psychology, as the classical school has always
done (Pagano for instance, and Bentham, Mitter-
1 66 CRIMINAL SOCIOLOGY.
maier, Ellero, and others), but also, and above all,
with the data and inferences of criminal anthropology
and psychology.
In the evolution of the theory of evidence we may
distinguish four characteristic stages, as M. Tarde
observed — the religious stage, with its ordeals and
combats ; the legal stage, accompanied by torture ;
the political stage, with private conviction and the
jury ; and the scientific stage, with expert knowledge
of experimental results, systematically collected and
studied, which is the new task of positive procedure.
We must glance at each of the three elements of
the criminal trial : collection of evidence (police and
preliminary inquiry) ; discussion of evidence (prose-
cution and defence), and decision upon evidence
(judges and juries).
It is evident in the first place, as I remarked in the
first edition of this work, and as Righini, Garofalo,
Lombroso, Alongi, and Rossi have confirmed, that a
study of the anthropological factors of crime provides
the guardians and administrators of the law with
new and more certain methods in the detection
of the guilty. Tattooing, anthropometry, physiog-
nomy, physical and mental conditions, records of
sensibility, reflex activity, vaso-motor reactions, the
range of sight, the data of criminal statistics, facili-
tate and complete the amassing of evidence, personal
identification, and hints as to the capacity to commit
any particular crime ; and they will frequently suffice
to give police agents and examining magistrates a
scientific guidance in their inquiries, which now
depend entirely on their individual acuteness and
mental sagacity.
PRACTICAL REFORMS. 167
And when we remember the enormous number of
crimes and offences which are not punished, for lack
or inadequacy of evidence, and the frequency of trials
which are .based solely on circumstantial hints, it is
easy to see the practical utility of the primary con-
nection between criminal sociology and penal pro-
cedure.
The practical application of anthropometry to
the identification of criminals, and to the question
of recidivism, which was begun in Paris by M.
Bertillon, and subsequently adopted by almost all the
states of Europe and America, is too familiar to need
description. It will be sufficient to recall the modi-
fications of Bertillon's s)'stem by Anfosso, with the
actual collection of anthropometric data, and their
inclusion in the ordinary records of justice.
Thus the sphygmographic data on the circulation
of the blood, which reveal the inner emotions, in spite
of an outward appearance of calm or indifference,
have already served to show that a person accused of
theft was not guilty of it, but that he was on the con-
trary guilty of another theft, of which he had not been
so much as suspected. On another occasion they
established the innocence of a man condemned to
death. We shall have more speaking and frequent
illustrations when these inquiries have been placed
regularly at the service of criminal justice.
The sphygmograph may also be useful in the
diagnosis of simulated disease, after the example set
M. Voisin in the case of a sham epileptic in Paris,
" whose sphygmographic lines have no resemblance
to those of true epileptics before and after a fit, and
l68 CRIMINAL SOCIOLOGY.
only resemble those produced by normal persons
after a violent gesticulation."
As for the possible utilisation of hypnotism, we
must be cautious before we draw any legal con-
clusions from it ; but it cannot be questioned that
this is a valuable source of scientific aid in the syste-
matic collection of criminal evidence.
But, for the present, the most certain and profitable
aids in the collection of evidence are those afforded
by the organic and psychical characteristics of
criminals. In my study on homicide I reckoned
up many psychological and psycho-pathological
symptoms which characterise the murderer, the
homicidal madman, and the homicide through
passion. And in my professional practice I have
often found by experience that there is a great
suggestive efficacy in these psychological symptoms
in regard to the conduct of a criminal, before, during,
and after a crime ; and it is important to bring this
knowledge scientifically before detectives and judges.
These data are not applicable to accused persons
exclusively. When we remember the enormous
importance of oral evidence in the chain of criminal
proof, and the rough traditional empiricism of the
criteria of credibility, which are daily applied in all
trials to all kinds of witnesses, by men who regard
them, like the prisoners, as an average abstract type —
excluding only the definite cases of inability to give
evidence, which are defined beforehand with as much
method as the cases of irresponsibility — the necessity
of calling in the aid of scientific psychology and
psycho-pathology is manifest.
PRACTICAL REFORMS. 169
For instance, not to dwell on the absurd violation
of these traditional criteria of credibility, when police
officers are admitted as witnesses (often the only wit-
nesses) of resistance to authority or violence, wherein
they are doubly interested parties, how often in our
courts do we give a thought to the casual imagina-
tions or credulity of children, women, weak-nerved or
hysterical persons, and so on ? Counsel for defence
or prosecution who desired to know if any particular
witness is or is not hysterical would bring a smile to
the face of the judge, very learned, no doubt, in
Roman law or legal precedents, but certainly ignorant
in physiology, psychology, and psycho-pathology.
Yet the tendency to slander in hysterical cases, which
M. Ceneri urged so eloquently in a celebrated trial,
or the tendency to untruth in children, which M.
Motet has ably illustrated, are but manifest and
simple examples of this applicability ot normal,
criminal, and pathological psychology to the credi-
bility of witnesses. And, under its influence, how
much of the clear atmosphere of humanity will stimu-
late our courts of justice, which are still too much
isolated from the world and from human life, where,
nevertheless, prisoners and witnesses come, and too
often come again, living phantoms whom the judges
know not, and only see confusedly through the thick
mist of legal maxims, and articles of the code, and
criminal procedure.
Apart from these examples, which prove the im-
portance of what M. Sarraute justly called "judicial
applications of criminal sociology," the fundamental
reform needed in the scientific preparation of criminal
170 CRIMINAL SOCIOLOGY,
evidence is the creation of magisterial experts in every
court of preliminary inquiry. In a question of forgery,
poisoning, or abortion, the judge has recourse to ex-
perts in handwriting, chemistry, or obstetrics ; but
beyond -these technical, special, and less frequent
cases, in every criminal trial the basis of inquiry is or
ought to be formed by the data of criminal biology,
psychology, and ps\xho-pathology. So that, over and
above the knowledge of these sciences which is neces-
sary to judges, magistrates, and police officers, it is
most important that an expert, or several experts in
criminal anthropology should be attached to every
court of criminal inquiry.
This would provide us with an anthropological
classification, certain and speedy, of every convicted
person, as well as a legal classification of the material
fact, and we should avoid the scandal of what are
known as experts for the prosecution and experts for
the defence. There should be but one finding of
experts, either by agreement between them or by a
scientific reference to arbitration, as in the German,
Austrian, and Russian system ; and over this finding
the judges and the litigants should have no other
power than to call for explanations from the chief
of the experts.
In this way we should further avoid the scandal ot
judges entirely ignorant of the elementary ideas of
criminal biology, psychology, and psycho-pathology,
like the president of an assize court whom I heard
telling a jury that he was unable to say why an expert
" wanted to examine the feet ot a prisoner in order to
come to a decision about his head." This president,
PRACTICAL REFORMS. 171
who was an excellent magistrate and a learned jurist
was wholly unacquainted with the elements of the
theory of degeneracy, like one of his colleagues
whom I heard saying, when the expert spoke of the
abnormal shape of the ears of a prisoner (in accord
with the inquiries of Morel and Lombroso), " That
depends on how the hat is worn."
For in consequence of the assumption, made by
Kant amongst others, that questions of mental disease
belong to the philosopher rather than to the physician,
and of the absurd and shallow idea which superficial
persons entertain of those who are insane, picturing
them as constantly raving, the judge or juryman who
pins his faith to an expert in handwriting thinks him-
self above the necessity of taking the opinion of an
expert in insanity.
It must be recognised, however, that this foolish
assumption is partly due to a reasonable anxiety for
the public safety, under the sway of the classical
theories, which allow the acquittal and discharge of
criminals who are found to be of unsound mind. It
will eventually disappear, either by the wider dif-
fusion of elementary ideas of psycho-pathology or by
the application of positive theories, which are far
from carrying the proved insanity of a prisoner to the
dangerous and absurd conclusion of his acquittal.
After the first stage of the collection of evidence,
during which we can admit the legal representation
of the accused, especially for the sake of eliciting both
sides of the question, without, however, going so far
as the individual exaggerations of complete publicity
for the preliminary inquiry, we come to the second
172 CRIMINAL SOCIOLOGY.
stage of procedure, that of the public discussion of
the evidence.
The principals in this discussion represent the
prosecution (public or private) and the defence ; and
for these, as I cannot go into great detail, I will only-
mention one necessary reform. That is the institu-
tion of a sort of public defence, by a legal officer
such as used to be found in certain of the Italian
provinces, under the title of " advocate of the poor,"
who ought to be on a par with the public prosecutor,
and to be substituted for the present institution of
the official defence, which is a complete failure.
As for the actual discussion of evidence, when we
have established the scientific rules of evidence, based
upon expert acquaintance with criminal anthropo-
logy, and when we have eliminated all verbal conten-
tion over the precise measure of moral responsibility
in the prisoner, the whole debate will be a criticism
of the personal and material indications, of the deter-
mining motives, and the anthropological category to
which the accused belongs, and of the consequent
form of social defence best adapted to his physical
and psychical character.
The practical conclusion of the criminal trial is
arrived at in the third stage, that of the decision on
the evidence.
So far as we are concerned, the criminal adjudica-
tion has the simple quality of a scientific inquiry,
subjective and objective, in regard to the accused as
a possible criminal, and in relation to the deed of
which he is alleged to be the author. We naturally
therefore require in the judge certain scientific
PRACTICAL REFORMS, 1 73
knowledge, and not merely the intuition of common
sense.
But as the consultation of the jury, by reason of
its inseparable political aspect, must take place in
private, we can only insist on the fundamental reform
of the judicial organisation, which alone can realise
the scientific principle of criminal adjudication. It
was Garofalo who, in the earlier days of the positive
school, urged that civil and criminal judges ought
to be wholly distinct, and that the latter ought to
be versed in anthropology, statistics, and criminal
sociology, rather than in Roman law, legal history,
and the like, which throw no light on the judgment
of the criminal.
Learned jurists, proficient in the civil law, are least
fit to make a criminal judge, accustomed as they are
by their studies to abstractions of humanity, looking
solely to the juridical bearings, inasmuch as civil law
is mostly ignorant of all that concerns the physical
and moral nature of individuals. The demoralisation
or uprightness of a creditor, for instance, has no
influence for or against the validity of his credit.
The jurist, therefore, in a matter of criminal adju-
dication, entirely loses sight of the personal conditions
of the accused, and the social conditions of the com-
munity, and confines his attention to the deed, and
to the maxims of a so-called retributive justice.
They who are called upon to try criminals ought to
possess the ideas necessary to the natural study of a
criminal man, and should therefore constitute an
order of magistrates wholly distinct from that of civil
judges.
13
174 CRIMINAL SOCIOLOGY.
The practical means of securing this fundamental
reform of the judicial bench ought to begin with the
organisation of the university, for in the courses of
the faculty of law it will be necessary to introduce
a more vigorous and modern stream of social and
anthropological studies, which must also eventually
put new life into the ancient maxims of the civil
law.
In the second place, law students at the university
ought to be admitted to what Ellero called a science
of clinical criminology, that is to interviews with
and systematic observations of prisoners. The first
Congress of Criminal Anthropology approved the
proposal of M. Tarde, upon the following motion of
Moleschot-Ferri : — " The Congress, in agreement with
the scientific tendency of criminal anthropology, is
of opinion that prison authorities, whilst taking
necessary precautions for internal discipline, and for
the individual rights of condemned prisoners, should
admit to the clinical study of criminals all professors
and students of penal law and legal medicine, under
the direction and responsibility of their own pro-
fessors, and if possible in the character of societies
for the aid of actual and discharged prisoners."
Lastly, a special school should be founded for
policemen and prison warders, with the object of
securing detectives distinguished not only for their
personal ability, but also for their knowledge of
criminal biology and psychology.
To these reforms, which guarantee the scientific
capacity of the criminal judge, we must add reforms
which would secure his complete independence of
PRACTICAL REFORMS. 175
the executive authority, which is now the only
authority responsible for the advancement and allo-
cation of judges. But this independence would not
be exempt from every kind of control, such as public
opinion, and disciplinary authority to some extent
distinct from the persojinel of the bench ; for other-
wise the judicial authority would soon become another
form of insupportable tyranny.
The most effectual mode of securing the inde-
pendence of the judges is to improve their position
in life. For admitting that a fixed stipend, payable
every month, makes a man content with a somewhat
lower figure, still it is certain that in these days,
with a few honourable exceptions, the selection of
judges is not satisfactory, because low salaries only
attract such as could not earn more by the practice
of their profession.
The personal character of the bench vitally affects
the quality of the government as a whole. The most
academic and exalted codes are of little avail if there
are not good judges to administer them ; but with
good judges it matters little if the codes or statutes
are imperfect.
In criminal law the application of the statute to
the particular case is not, or should not be, a mere
question of legal and abstract logic, as it is in civil
law. It involves the adaptation of an abstract rule,
in a psychological sense, to a living and breathing
man ; for the criminal judge cannot separate himself
from the environment and social life, so as to become
a more or less mechanical lex loquens. The living
and human tests of every criminal sentence reside in
176 CRIMINAL SOCIOLOGY.
the conditions of the act, the author, and reacting
society, far more than in the written law.
Herein we have an opportunity of solving the old
question of the authority of the judge, wherein we
have gone from one excess to another, from the
unbounded authority of the Middle Ages to the
Baconian aphorism respecting the law and the judge,
according to which the law is excellent when it leaves
least to the judge, and the judge is excellent when
he leaves himself the least independent judgment.
If the function of the criminal judge were always
to be, as it is now, an illusory and quantitative
inquiry into the moral culpability of the accused,
with the equally quantitative and Byzantine rules
on attempt, complicity, competing crimes, and so
forth — that is to say, if the law were to be applied
to the crime and not to the criminal, then it is
necessary that the authority of the judge should be
restrained within the numerical barriers of articles of
the code, of so many years, months, and days of
imprisonment to be dosed out, just as the Chinese
law decides with much exactitude the length and
diameter of the bamboo rods, which in the penal
system of the Celestial Empire have the same
prominence as penitentiary cells have with us.
But if a criminal trial ought to be, on the other
hand, a physio-psychological examination of the
accused, the crime being relegated to the second line,
as far as punishment is concerned, the criminal being
kept in the front, then it is clear that the penal code
should be limited to a few general rules on the modes
of defence and social sanction, and on the constituent
PRACTICAL REFORMS. 177
elements of every crime and offence, whilst the judge
should have greater liberty, controlled by the scien-
tific and positive data of the trial, so that he may
judge the man before him with a knowledge of
humanity.
The unfettered authority of the judge is inad-
missible in regard to the forms of procedure, which
for the prosecuted citizen are an actual guarantee
against judicial errors and surprises, but which should
be carefully distinguished from that hollow and
superstitious formalism which generates the most
grotesque inanities, such as an error of a word in
the oath taken by witnesses or experts, or a blot of
ink on the signature of a clerk.
III.
Scientific knowledge of criminals and of crime,
not only as the deed which preceded the trial, but
also as a natural and social phenomenon — this, then,
is the fundamental principle of every reform in the
judicial order ; and this, too, is a condemnation of
the jury. Whilst Brusa, one of the most doctrinaire
of the Italian classical school, foretold a steady
decline of the "technical element" in the magistracy,
and consequently a persistent intervention of the
popular influence in the administration of justice,
the positive school, on the other hand, has always
predicted the inevitable decline of the jury in the
trial of crimes and ordinary offences.^
' It is interesting to observe that Carrara, in spite of his pubhc
advocacy of the jury, wrote in a private letter in 1870 (published on
178 CRIMINAL SOCIOLOGY.
Theodore Jouffroy, after listening at the Uni-
versity of Pisa to a lecture by Carmignani against
the jury, said, " You are defending logic, but slaying
liberty."
Apart from the question whether liberty is possible
without logic, it is nevertheless a fact that there is
always a prominent political character in the jury.
This accounts for the more or less declamatory
defences of this judicial institution, which is no
favourite with the criminal sociologist.
At the end of the eighteenth century, when there
was a scientific and legislative tendency towards the
creation of an independent order of magistrates, the
French Revolution, mistrusting the whole aristocracy
and social caste, opposed this tendency, believing
enthusiastically in the omnipotence and omniscience
of the people, and instituted the jury. And whilst
in the political order it was inspired by classical
antiquity, in the order of justice it adopted this
institution from England. The jury was not un-
the unveiling of his monument at Lucca) : — " I expressed my opinion
as to the jury in 1841, in an article published in the Annals of Tuscan
Jurisprudence — namely, that criminal justice was becoming a lottery.
Justice is being deprived of her scales and provided with a dice-box.
This seems to me to be the capital defect of the jury. All other
defects might be eliminated by a good law, but this one is inseparable
fiom the jury. . . . Even amongst magistrates we may find the harsh
and the clement ; but in the main they judge according to legal
argument, and one can always more or less foresee the issue of a trial
But with juries all forecast is rash and deceptive. They decide by
sentiment ; and what is there more vague and fickle than sentiment
.' . With juries, craft is more serviceable to an advocate tlinn know-
ledge. I once had to defend a husliand who had killed his wife's lover
in a cafe. I challenged the bachelors on the jury, and accepted the
married men. After that, I was sure of success, and I succeeded. . . .
This is the real essential vice of the jury, which no legislative measure
couid overcome."
PRACTICAL REFORMS. lyg
known to the Republic of Athens and Rome, but
it was developed in the Middle Ages by the " bar-
barians," as an instrument which helped the people
to escape from tyranny in the administration of the
law. It used to be said that the jury made a reality
of popular sovereignty, and substituted the common
sense and good will of the people for the cold
dogmatism of the lawyers, penetrated as they were
by class prejudices. From this point of view the
jury was too much in accord with the general
tendency of the ideas of the day not to be greedily
adopted. It was another example of the close con-
nection between philosophic ideas, political institu-
tions, and the judicial organisation.
The jury, transported to the Continent, in spite of
the improvements recorded by Bergasse in his report
to the Constituent Assembly, on August 14, 1789,
was a mere counterfeit of that which it was, and is, in
England. But its political character is still so attractive
that it has many supporters to this day, though the
results of its employment in various countries are not
very happy.
Yet, as the jury is a legal institution, we must
consider its advantages and defects, both from the
political and from the legal point of view, and accept
the conclusion forced upon us by the predominance
of one or the other.
. From the political standpoint, it is unquestionable
that the jury is a concession to popular sovereignty ;
for it is admitted that the power of the law not only
originates with the people, but is also directly exer-
cised by them.
l80 CRIMINAL SOCIOLOGY.
The jury may also be a guarantee of civic and
political liberties as against the abuses of govern-
ment, which are far more easy with a small num-
ber of judges, more or less subordinate to the
government.
Again, the jury may be a means of affirming the
sentiment of equality amongst citizens, each of whom
may to-morrow become a judge of his equals, and
of spreading political education, with a practical
knowledge of the law. It is true that, with this
knowledge of the law, juries also learn the details of
every kind of crime, without the equally constant
evidence of virtuous actions ; and there is here a
danger of moral contagion from crime. But, from
the political point of view, it is certain that the jury
may awaken, with a knowledge of the law, a con-
sciousness of civic duties, which are too frequently
undertaken as a forced and troublesome burden.
On these political advantages of the jury, however,
a few remarks may be made.
In the first place, the concession to popular sove-
reignty is reduced to very small proportions by the
limitations of the jury list, and of the functions of the
jury, which legislation in every country is compelled
to impose.
The essential characteristic distinguishing the jury
from the judge is especially marked by the origin of
their authority; for the jury is a judge simply because
he is a citizen, whilst the magistrate is a judge only
by popular election or appointment by the head of
the State. So that any one who has entered on his
civil and political rights, and is of the necessary age,
PRACTICAL REFORMS. l8l
ought, according to the spirit of the institution, to
administer justice on every civil or criminal question,
whatever its importance, and not only in giving the
final verdict, but also in conducting the trial. Yet
not only is the ancient trial by popular assemblies
impossible in the great States of our day, but also
faith in the omniscience of the people has not availed
to prevent all kinds of limitations in the principle of
the jury. Thus the political principle of the jury is
such that it cannot be realised without misapprehen-
sion, limitation, and depreciation.
In fact, even in England, where the jury can of its
own motion declare in the verdict its opinions, stric-
tures, and suggestions of reform, as arising out of
the trial, it is always subject to the guidance of the
judge, and it is not employed in the less serious and
most numerous cases, on which the whole decision is
left to magistrates, who apparently are not to be
trusted to decide upon crimes of a graver kind.
And as for the other political advantages of the
jury, experience shows us that the jury is often more
injurious than serviceable to liberty.
In the first place, in continental States the jury is
but an institution artificially grafted, by a stroke of
the pen, on the organism of the law, and has no vital
connection or common roots with this and other
social organisms, as it has in England. Also the
e^cample of classical antiquity is opposed to the in-
stitution of the jury, which has been imposed upon
Us by eager imitation and political symmetry ; for if
the jury had disappeared amongst continental nations,
this simply means that it did not find in the ethnic
102 CRIMINAL SOCIOLOGY,
types, the manners and customs, the physical and
social environments of these nations, an adequate
supply of vitality, such as it has retained, for instance,
through so many historical changes, amongst the
Anglo-Saxons.
And if sometimes the jury can withstand the abuses
of government, still too frequently it does not with-
stand its own passions, or the influence of the social
class (the bourgeoisie in our own day), to which nearly
all juries belong. It is notorious, in fact, that the
jury is more rigorous in regard to prisoners accused
of crimes against property than in regard to those
accused of crimes against the person, especially
crimes instigated by personal motives such as hate,
vengeance, or the like ; for every juryman thinks that
he himself might be a victim of the exploits of a
thief, or the attacks of a murderer for the sake of
gain ; whereas there is less reason to fear a murder
provoked by vengeance, an outrage, an embezzlement
of public money, or the like. And Macchiavelli said
that men would rather have blood drawn from their
veins than money from their pockets.
Besides, the same jury which will resist pressure
from the Government does not resist popular pressure,
direct or indirect, especially in view of the secrecy of
their individual votes. No doubt there are noble ex-
ceptions ; but society is made up of average virtues,
and only upon them can it count.^
And when it is continually asserted, in the words
* In Dublin, for the trial of the murderers of Burke and Lord
Frederick Cavendish, in 1883, the empanelling of the jury was very
difficult, for nobody was willing to expose himself to the vengeance ol
the fanatics.
PRACTICAL REFORMS. 1 83
of Joufifroy, that the jury is an outpost of liberty, or
in those of Carrara, that it is its necessary comple-
ment, we have to remark that this would be true if
the jury were instituted by a despotic government ;
but when popular liberties have far more effectual
guarantees in the political organisation of the State,
then this quality of the jury is more apparent than real.
In fine, either the government is despotic, and then
juries are not strong enough to preserve liberty, as in
England from the time of Henry VIII. to that of
James II.; or, as Mittermaier said, "when authority
is corrupt, and the judge is cowardly or terrorised, a
jury cannot assist in the defence of liberty." Or else
the government is liberal, and then the judges also
are independent, so that there is no need ot juries,
especially with the guarantees of their independence
which I have already indicated.
Now history reminds us that the jury is never
instituted by despotic governments. It was refused,
for instance, in upper Italy by Napoleon in 181 5, in
Naples by the Bourbons in 1820, in Lombardy by
Austria in 1849, and in our own day in Russia, for
political crimes, though it is allowed for ordinary
crimes.
Thus the jury, as a political and liberal institution,
is oddly destined to be excluded when it would be
serviceable, and to be useless when it is admitted. It
reminds us of the destiny of the National Guard.
But, even in England, the jury is regarded as
especially a legal institution ; and the main qualities
attributed to it in this connection are moral judg-
ment and private conviction.
184 CRIMINAL SOCIOLOGY.
The law, we are told, has always a certain harsh-
ness and insufficiency, for it ought to provide for the
future whilst grounding itself on the past, whereas it
cannot foresee all possible cases. Progress is so rapid
and manifold, in modern society, that penal laws
cannot keep pace with it, even though they are fre-
quently recast — as for instance in Bavaria, which in
one century has had three penal codes, and in
France, where an almost daily accumulation of
special laws is piled upon the original text of the
most ancient code in Europe.
The jury, by its moral judgment, corresponding in
some degree to the equity of the ancients, is able to
correct the sumnium Jus with verdicts superior to the
written law. And, in addition, the jury always fol-
lows its private conviction, the inspiration of senti-
ment, the voice of the conscience, pure instinct, in
place of the stern and artificial maxims of the trained
lawyer.
I do not deny these qualities of the jury ; but I
very much suspect that they are serious and dan-
gerous vices rather than useful qualities in a legal
institution.
In the first place, I believe that the distinction of
powers or social functions, corresponding to the
natural law of division of labour, ought not to be
destroyed by the jury. The duty of the judicial
power, before everything else, is to observe and apply
the written law; for if we once admit the possibility
that the judge (popular or trained) has to amend the
law, all guarantee of liberty is lost, and the authority
of the individual is unlimited. As I have said above,
PRACTICAL REFORMS. 185
we allow the authority of the judge only when we
have actual guarantees of his capacity and inde-
pendence, and always within the limits of the general
precepts of the law, and under the control of a
superior disciplinary power.
But the omnipotence of the jury, liberated from all
reasonable regulation, with no directing motives for
its verdict, and no possibility of control, is a two-
edged blade, which may sometimes improve upon the
law, or at least usefully indicate to the legislator the
tendencies of public opinion in regard to a particular
crime. But it may also violate the law, and the liberty
of the individual, and then we pay too dear for the
slight advantage which the jury can confer, and which
might be replaced by other manifestations of public
opinion. In any case, as Bentham said, it is better
to have our remedy in the law than in the subversion
of the law.
As for private conviction, we willingly admit that
no system of legal proof is acceptable. But it is one
thing to substitute for the legal and artificial assur-
ance of the law the assurance of the judge who tries
' the case, and quite another thing to substitute for
conviction founded on argument, and for a critical
examination of the evidence collected during the
trial, the blind and simple promptings of instinct or
sentiment.
Even apart from technical notions, which we con-
sider necessary to the physio-psychological trial of
any accused person, social justice certainly cannot be
dispensed through the momentary and unconsidered
impressions of a casual juryman. If a criminal trial
l86 CRIMINAL SOCIOLOGY.
consisted of the simple declaration that a particular
action was good or bad, no doubt the moral con-
sciousness of the individual would be sufficient ; but
since it is a question of the value of evidence and the
examination of objective and subjective facts, moral
consciousness does not suffice, and everything should
be submitted to the critical exercise of the intellect.
To the instinctive blindness of the judgment of
juries we must add their irresponsibility.
No doubt if the legislator required from all judges
a simple Yes or No, then perhaps the jury would be
as good as the magistrate. But instead of the unex-
plained verdict which Carmignani called "the method
of the cadi," we are of opinion that there should
always be substituted a sentence based on reasons
and capable of control, especially in the positive
system of criminal procedure, which demands from
the judge an acquaintance with anthropology and
criminal sociology, and from his sentence the ele-
ments necessary to the subsequent treatment of the
convict, in agreement with the characteristics of his
individuality and of his crime.
But not only is the jury devoid of the qualities
attributed to it ; it has a fatal defect, which alone is
sufficient to condemn this institution of the law.
In the first place, it is not easy to understand how
a dozen jurymen, selected at hazard, can actually
represent the popular conscience, which indeed fre-
quently protests against their decisions. In any case,
the fundamental conception of the jury is that the
mere fact of its belonging to the people gives it the
right to judge ; and as the ancient assemblies are no
PRACTICAL REFORMS. 187
longer possible, the essence of the jury is that chance
alone must decide the practical exercise of this
popular prerogative.
Now these two conceptions of the jury are in
manifest contradiction with the universal rule of
public and private life, that social functions should
be exercised by persons selected as most capable.
Thus in everyday life we all require of every
labourer the work of which he is more particularly
capable. No one would dream, for instance, of
having his watch mended by a cobbler. The ad-
ministration of criminal justice, on the contrary,
is demanded of any one we chance to come across,
be he grocer or man of independent means, painter
or pensioner, who may never in his life have witnessed
a criminal trial !
The irregularity of our statutes corresponds to the
incapacity of individual jurymen ; for it is evident
that we cannot impose the rigorous process of a
special mode of procedure on the first-comer. And
the law heightens the absurdity by plainly declaring
that juries must give their decision without regard to
the consequences of their verdict ! " Jurymen fail
in their highest duty when they have regard to the
penal law, and consider the consequences which their
verdict may have upon the accused " (Article 342 of
the French code of criminal procedure).
. That is to say, criminal justice should be based
on the neglect of the elementary rule of justice,
according to which every man ought always to con-
sider the possible consequences of his actions. And
the criminal law demands from juries this proof of
1 88 CRIMINAL SOCIOLOGY.
their blindness Cwhich is fortunately impossible) that
they should judge blindfold, with no regard for the
prisoner, or for the consequences which their verdict
may have upon him.
It was impossible that the advocates of the jury
should fail to see the absurdity of these principles ;
and they have been compelled to slur them over, at
any rate in ordinary practice.
In respect of the composition of juries, restrictions
have been introduced, by means of lists of eligible
persons, selection by lot, the optional exclusion of a
certain number of jurymen by the public prosecutor
and the defence, &c. All these expedients, however,
some of which are imposed by necessity, can only
insure a general and presumptive capacity, for they
have the merely negative effect of contributing to
exclude the most manifest moral or intellectual
incapacity. But the only capacity which is neces-
sary in a judge, which is a special and positive
capacity, is not guaranteed by these restrictions,
which, after all, are a negation of the very principle
of the jury.
And even if the jury were always composed of
persons of adequate capacity, it would still be con-
demned by two inevitable arguments of human
psychology.
First, the assembling of several individuals of
typical capacity never affords a guarantee of collec-
tive capacity, for in psychology a meeting of
individuals is far from being equivalent to the
aggregate of their qualities. As in chemistry the
combination of two gases may give us a liquid
PRACTICAL REFORMS. 189
SO in psychology the assembling of individuals of
good sense may give us a body void of good sense.
This is a phenomenon of psychological fermentation,
by which individual dispositions, the least good and
wise, that is the most numerous and effective,
dominate the better ones, as the rule dominates the
exceptions. This explains the ancient saying, " The
senators are good men, but the Senate is a mis-
chievous animal."
And this fact of collective inferiority, not to say
degeneracy, is observed in casual assemblies, such as
juries, meetings, and the like, far more than in organ-
ised and permanent councils of judges, experts, &c.
Secondly, the jury, even when composed of persons
of average capacity, will never be able in its judicial
function to follow the best rules of intellectual
evolution.
Human intelligence, in fact, both individual and
collective, displays these three phases of progressive
development : common sense, reason, and science,
which are not essentially different, but which differ
greatly in the degree of their complexity. Now it
is evident that a gathering of individuals of average
capacity, but not technical capacity, will in its
decisions only be able to follow the rules of common
sense, or at most, by way of exception, the rules of
reason — that is, of their common mental habits,
more or less directed by a certain natural capacity.
But the higher rules of science, which are still in-
dispensable for a judgment so difficult as that which
bears on crimes and criminals, will always be un-
known to it.
14
I go CRIMINAL SOCIOLOGY.
As for the irregularity of the action of a jury, it
has been deemed that this can be provided against
by the formal distinction between a decision of fact
and a decision of law, in obedience to the advice
of Montesquieu, that " to the popular judgment we
should submit a single object, a fact, a single fact."
But without dwelling on the remark of Hye-
Glunek, that in this way the legal problem, which
ought to be as indivisible as the syllogism which
creates it, is cut into two parts, it is evident that
Cambaceres was amply justified in saying, in the
Council of State, that the separation of fact from law
is a fallacy.
In fine, not only under the positive system of
criminal procedure, which demands of the judge, in
addition to legal conceptions of crime, some anthropo-
logical and sociological knowledge of criminals, but
even at the present day it is more correct to say that
the jury is concerned with the crime — that is, in the
words of Binding, with a legal fact, and not merely
a material fact ; whilst the judge is concerned with
the punishment. Thus, in the Assize Court, the
separation of the judgments is not between fact and
law, but only between the crime and the punish-
ment
Even admitting the possibility of this separation
'of fact and law, logic and experience have already
belied the assertion of those who say with Beccaria
that, " for the appreciation of facts, ordinary intelli-
gence is better than science, common sense better
than the highest mental faculties, and ordinary train-
insj better than scientific."
PRACTICAL REFORMS. IQI
On the contrary, a criminal trial is not only con-
cerned with the direct perception of facts, but also
and especially with their critical reconstruction and
psychological appreciation. In civil law the fact is
really accessory, and both sides may be agreed in its
exposition, whilst disputing about the application of
the law to this fact. But in criminal justice the fact
is the principal element, and it is not merely neces-
sary to admit or to decide upon this or that detail,
but we have also to regard its causes and effects,
from the individual and the social point of view,
without speaking of ' the common difficulty of a
critical and evidential appreciation of a mass of
significant circumstances. So that, as Ellero said,
in a criminal trial the decision as to fact is far more
difficult than that as to law. And by this time daily
practice has accumulated so many proofs, more or
less scandalous, of the incapacity of the jury even to
appreciate facts, that it is useless to dwell upon
them.
To conclude this question of the jury, it remains
to speak of its defects, which are not the more or less
avoidable consequences of a more or less fortunate
application of the principle, which might be the case
with any social institution, but, on the contrary, are
an inevitable consequence of the laws of psychology
an^ sociology.
(So far as science is concerned, a fact exists in
connection with a general law) For common sense,
on the other hand, the actuality of the particular fact
is the only matter of concern. Hence the inevitable
tendency of the jury to be dominated by isolated
192 CRIMINAL SOCIOLOGY.
facts, with no other guide than sentiment, which,
especially in southern races, confines all pity to the
criminals, whilst the crime and its victims are all but
forgotten. The very keenness of sentiment which
would urge the people to administer "summary
justice " on the criminal, when surprised in the fact,
turns entirely in his favour when he is brought up
at the assizes, with downcast mien, several months
after the crime. Hence we obtain an impassioned
and purblind justice.
And the predominance of sentiment over the
intelligence of the jury is revealed in the now
incurable aspect of judicial discussions. There is
no need and no use for legal and sociological studies
and for technical knowledge ; the only need is for
oratorical persuasiveness and sentimental declama-
tions. Thus we have heard an advocate telling a
jury that, "in trials into which passion enters, we
must decide with passion." Hence, also, the deterio-
ration of science in the Assize Courts, and its faulty
application, and its completely erroneous conse-
quences.
Moreover, the verdict of the jury cannot represent
the sum of spontaneous and individual convictions —
not only in countries where juries are exposed to
all kinds of influences during the adjournments of
the discussion, but even in England, where unanimity
is required, and where all communication of the jury
with the outer world is forbidden until the end of the
trial. For in every case the influence of the most
intriguing or most respected jurymen in the jury's
room is always inevitable. So that we have even
PRACTICAL REFORMS. I93
had irresponsible suggestions of public deliberation
on the part of the jury.
Against these defects of the jury its advocates have
set an objection in regard to the trained judge,
namely that the habit of judging crimes and offences
irresistibly inclines the judge to look upon every
prisoner as guilty, and to extinguish the presumption
of innocence even in cases where it would be most
justified.
This objection has really a psychological basis ;
for the conversion of the conscious into the uncon-
scious, and the polarisation of the intellectual faculties
and dispositions, are facts of daily observation, deter-
mined by the biological law of the economy of force.
But it is not sufficient to make us prefer juries to judges.
In addition to the fact that this mental habit of
judges may be counteracted by a better selection of
magistrates under the reforms which. I have indicated,
it is to be observed that this presumption of inno-
cence, as we have seen, is not so absolute as some
would have us believe, especially in case of a trial
which follows upon a series of inquiries and proofs in
the preliminary hearing.
Again, this tendency of judges is restrained and
corrected by the publicity of the discussions. And
all, or nearly all, the famous and oft-repeated in-
stances of judicial errors go back to the time of the
inquisitorial and secret trial — in regard to which an
interesting historical problem presents itself ; that is
to say the co-existence of the inquisitorial trial, which
impairs every individual guarantee, with the political
liberties of the mediaeval Italian republics.
194 CRIMINAL SOCIOLOGY.
This is why the number of acquittals, and of the
admission of extenuating circumstances, is always
very remarkable, even in the Correctional Tribunals,
which in Italy show proportions not greatly differing
from those of the Assize Courts.
We must remember that, under our modern penal
procedure, it is not the individual guarantees that
are lacking, such as the assigning of reasons for the
sentence, the almost total abolition of punishments
which cannot be reconsidered, appeals, reversals,
revision, which would be still more efficacious under
the positive system which we propose.
One logical consequence of the psychological objec-
tion raised against judges would be the granting of a
jury even in the Correctional Tribunals, though the
experience which we have of it in the Assize Courts
is not so encouraging as to leave many advocates of
a jury in the minor courts.
But a decisive objection, founded on the most posi-
tive data of sociology, can be raised against the jury.
The law of natural evolution proves that no varia-
tion in the vegetable or animal organism is useful or
durable which is not the outcome of a slow and
gradual preparation by organic forces and external
conditions. Thus an organ which ceases to have a
function to discharge is subject to atrophy, and no
new organ is possible or capable of development if
it is not required by a new function to which it
corresponds.
What has been said of organic variations is also
true of social institutions. And when the jury is
contemplated from this point of view, we see that
PRACTICAL REFORMS. IQS
it has been artificially grafted by a stroke of the
legislator's pen on the judicial institutions of the
continent, without the long-continued, spontaneous
and organic connections which it had, for instance,
with the English people. The jury had even dis-
appeared from the continental countries in which it
had left traces of former existence ; for it had not
found in the race-characteristics or the social organism
that favourable environment which is supplied in
England by the natural groundwork of institutions
and principles which, as Mittermaier says, are its
necessary correlative.
The jury, as it has been politically established on
the continent of Europe, is what Spencer calls a false
membrane in the social organism, having no physio-
logical connection with the rest of the body politic.
So that it is not yet acclimatised, even in France, after
a century of uninterrupted trial.^
As for the other bio-sociological law, of single
organs for single functions, it seems to me that if in
England the jury and the magistracy have been
developed side by side and interwoven, this is only a
case of organic integration. But on the continent, as
' The actual state of the law in Europe, so far as regards the jury for
common crimes and offences, is as follows : — England, Scotland,
Ireland, and Switzerland have the jury for assizes and courts of first
instance. France, Italy, Cisleithan Austria, Istria, Dalmatia, Rhenish
Prussia, Alsace-Lorraine, Bavaria, Bohemia, Gallicia, Belgium, Rou-
qiania, Greece, Portugal, Russia, and Malta, have the criminal jury
only. Spain had suspended it, but restored it in 1888. Prussia,
Saxony, Baden, Wurtemberg, have the criminal jury and echevins
(bodies of citizens sitting with the judges) for correctional and
police cases. Denmark, Sweden, and Finland, have the echevins.
Holland, Norway, Hungary, Slavonia, Poland, Servia, and Turkey,
have neither juries nor ec/ievins.
196 CRIMINAL SOCIOLOGY.
the jury has been added artificially to the magistracy,
this is on the other hand a genuine example of non-
natural growth.
And if it be said that the jury, as an advance from
the homogeneous to the heterogeneous, indicates a
higher degree of social evolution, we must draw a
distinction between differentiations which amount to
evolution and those which, on the contrary, are
symptoms of dissolution. Division of labour, phy-
siological or social, is a true evolutionary differentia-
tion ; whilst modifications introduced by a disease in
the animal organism, or by a revolt in the social
organism, are but the beginning of a more or less
extended dissolution.
Now the jury belongs to the domain of social
pathology, for it is essentially contrary to the law of
the specialisation of functions, according to which
every organ which becomes more adapted to a given
task is no longer adapted to any other. It is only in
the lower organisms that the same tissue or organ
can perform different functions, whilst in the verte-
brates the stomach can only serve for digestion,
the lungs for oxygenation, and so on. Similarly in
primitive societies, each individual is soldier, hunter,
tiller of the soil, &c., whilst with the progress of social
evolution every man performs his special function,
and becomes unfitted for other labours. In the jury
we have a return to the primitive confusion of social
functions, by giving to any chance comer, who may
be an excellent labourer, or artist, a very delicate
judicial function, for which he has no capacity to-day,
and will have no available experience to-morrow.
PRACTICAL REFORMS. I97
In modern societies, to tell the truth, there is
another function assigned to all citizens, outside of
their special capacity, and that is the electoral duty.
But the cases are very different. The franchise does
not demand a labour so difficult and delicate as
critical judgment, and the reconstruction of the con-
ditions of an act and of its author. It has no direct
influence on the positive function of the person
elected, but on the contrary it is a confession of the
special incapacity of the elector to do what he intrusts
to the capacity of the person elected. The franchise
is but an elementary function of the assimilation of
physiological elements in the social organism, which
in the animal organism is performed by the aggregate
of living cells, and in society by the aggregate of
individuals, not being idiots or criminals, who possess
the minimum of social energy.
Far different is the administration of criminal
justice, a technical and very noble function, which
has nothing in common with the elementary function
of the franchise. I could not indeed agree with the
assertion of Carrara, who thought it a contradiction
to deny to the people any participation in the
exercise of the judicial authority when they are
allowed to participate in the exercise of legislative
authority. In the first place, the people have but a
very indirect share in the legislative function, and,
even where the referendum exists, very useful as I
believe it to be, the people have only a simple, almost
negative function, to say Yes or No to a law which
they have not made, and would have had no technical
ability to make. Thus the argument of Carrara could
198 CRIMINAL SOCIOLOGY.
only lead to the popular election of judges, as of
legislators, and to a control by the people of the
administrative action of the judges when elected.
No doubt this would have theoretical advantages,
though in my opinion it would raise practical diffi-
culties, especially in nations which do not possess
a very keen conscience and political activity, after
enfeeblement by centuries of despotism, or of political
and administrative tutelage and centralisation.
The jury, then, is a retrogressive institution, as
shown by history and sociology, for it represents the
mediaeval and instinctive phase of criminal justice.
It has, indeed, a few advantages (there is always a
certain profit in misfortune), especially when it
operates on the final outcome of the classical theories
— bringing to bear, for instance, an irresistible force
against repeated theft, or murders committed at the
instigation of others. And it has sometimes drawn
attention to necessary penal reforms, after accepting
certain conclusions of the positive school, such as the
acquittal of criminals of passion, and political prisoners,
or a greater severity towards habitual criminals.
But the only possible conclusion from the foregoing
criticisms is that the jury should be abolished for the
trial of common crimes, a/Ur the introduction of
reforms which would ensure the capacity and inde-
pendence of the judges.
Meanwhile, since it is much easier to establish a
new social institution than to abolish one, it is worth
while to indicate the principal and most urgent re-
forms which should be made in the jury systern, so
PRACTICAL REFORMS. igg
as to eliminate its more serious and frequent dis-
advantages.
The theoretical distinction of the classical school
between ordinary and political crimes is not very
precise, for the so-called political crimes are either
not crimes (as when they are confined to the mani-
festation of an idea), or they are common crimes
which spring from a lofty and social passion in
individuals, who have the characteristics of the
criminal by passion, or, in other words, are but
quasi-criminals ; or else they are common crimes
committed by ordinary malefactors, under the pre-
text of a popular idea. Instead of distinguishing
crimes, I think we ought to distinguish between
ordinary and political criminals, according to their
determining motives, and the social bearings and
historical moment of their acts. At the same time,
whilst our criminal laws retain this distinction, I
think it is useful to keep the jury for the trial of
political crimes and offences, and for those connected
with the press and with society as a whole ; for if in
these cases the jury might yield to the influence of
class interests and prejudices (as for instance in the
trial of actions arising out of the conflict of capital
and labour), the danger will still be less than it would
be with judges alone, who are not sufficiently inde-
pendent of the executive, which in its turn is but the
secular arm of the dominant class, and which there-
fore combines the interests and prejudices of the
political order with those of the economic and moral
order which dominate the jury.
For common crimes it would be necessary to with-
200 CRIMINAL SOCIOLOGY.
hold from a jury the trial of prisoners who avow their
crime. The essence of a trial by indictment is the
principle that the discussion as to punishment is a
private affair, and it has no further ground for
existence when one of the parties withdraws from the
duel. Hence the English mistrust of a prisoner's
confession of guilt, which in the inquisitorial trial, on
the other hand, is a mainstay of the evidence. Yet I
believe that in these cases the Scottish system is
preferable to the English. In England the judge
begins by asking the prisoner if he is Guilty or Not
Guilty, and in case of a confession he passes sentence
without a verdict from the jury. In Scotland, on the
contrary, the prosecutor can furnish his proof, in spite
of the confession of the prisoner, and demand a
verdict from the jury. In this way it is possible to
avoid not only a scandalous acquittal of prisoners
who have confessed their guilt (as happens in Italy,
France, and elsewhere), but also the danger that the
confession may not be true, and that an innocent
man may be condemned.
Juries ought, moreover, as proposed by M. Ellero,
to specify attenuating circumstances, on each of which
a special question ought to be put to them.
The jury ought also to have the right of spon-
taneously finding in a sense less serious than that of
the charge, even when no corresponding question has
been put to them.
But at the same time it cannot be denied that these
would only be palliatives, more or less efficacious.
The only positive conclusion is that, whilst retain-
ing the jury for crimes of the political and social
PRACTICAL REFORMS. 201
order, we should aim at its abolition for common
crimes, immediately after securing stringent reforms
as to the independence and capacity of the judges.
IV.
It needs no further demonstration that the modern
organisation of punishment, based partly on the
assumption that we can measure the moral culpability
of criminals, and partly on an illusion as to their
general amendment, and almost entirely reduced, in
consequence, to imprisonment and the cell system,
has absolutely failed to protect society against crime.
Holtzendorff, one of the best known of the classical
school, frankly confessed that " the prison systems
have made shipwreck." So also in Italy we have
had disquisitions " on the futility of repression," and
in Germany it has been held that " existing criminal
law is powerless against crime." Thus the necessity
of taking steps to counteract this failure is forced
upon us more and more every day. We must
proceed either by way of legislative reforms, as
effectual as we can make them, but always inspired
by reaction against the established prison system, or
by a propaganda on scientific lines. The most strik-
ing form which has been taken by the latter process
is the International Union of Penal Law, which in
1 89 1, two years after its foundation, numbered nearly
six hundred members of various nationalities, and
which in the second clause of its charter, in spite of
the varied reservations of a few members, notably
supported the positive theories.
The defects of the penal system inspired by the
202 CRIMINAL SOCIOLOGY.
theories of the classical school of criminal law, and
by the actual regulations of the classical prison school,
may be briefly summed up. They are, a fallacious
scale of moral responsibility ; absolute ignorance and
neglect of the physio-psychological types of criminals ;
intervals between verdict and sentence on the one
hand, and between the sentence and its execution on
the other, with a consequent abuse of pardons ; dis-
astrous practical effects of corruption and of criminal
association in prisons ; millions of persons condemned
to short terms of imprisonment, which are foolish and
absurd ; and a continuous, inexorable increase of
recidivism.
So that the tribunals of Europe, as M. Prins ob-
served, with the absolute impersonality of modern
justice, allow their sentences to fall upon unhappy
wretches as a tap allows water to fall drop by drop
upon the ground.
Without counting fines or police detention, there
were sentenced in Italy, in the ten years 1880-89, to
various terms of imprisonment, 587,938 persons by
the Pretors, and 465, 130 by the Correctional Tribunals.
That is, more than a million terms in the minor
courts within ten years !
And the total number sentenced in Italy to various
punishments, by Pretors, Tribunals, and Assize
Courts, in the same ten years, was not less than
3,230,000.
As for recidivism, without repeating the familiar
figures of its annual increase, it will suffice to recall
the astounding fact to which I drew attention before
the central Commission of Legal Judicial Statistics.
PRACTICAL REFORMS. 203
That is to say, amongst the prisoners condemned in
1887 for simple homicide, there were 224 who had been
already condemned, either /or the same crime (63), or
for a crime mentioned in the same section of the
penal code (181) ; and even of those condemned for
qualified manslaughter, 78 had already been con-
demned, either for the same crhne (8), or for one of
like character.
In France we have figures equally striking, for they
relate not to the effect of exceptional conditions, or
conditions peculiar to this or that country, but to the
uniform consequence of the classical theories of
criminal law and prison organisation.
The total number condemned to imprisonment by
the French tribunals, and detained by the police, in
the ten years 1879-88, was 1,675,000 ; the Tribunal
sentences under six days being 113,000.
And the total condemned to punishments of various
kinds, by Assize Courts, Tribunals, and police courts,
reached in the same ten years the enormous number
of 6,440,000 individuals !
The meaning of this is that penal justice at the
present moment is a vast machine, devouring and
casting up again an enormous number of individuals,
who lose amongst its wheels their life, their honour,
their moral sense, and their health, bearing thenceforth
the ineffaceable scars, and falling into the ever-grow-
ing ranks of professional crime and recidivism, too
often without a hope of recovery.''
It is impossible, then, to deny the urgent necessity
' As regards recidivism and the enormous numbers tried, England is
in as bad a position as Italy and France. See my articles in Nineteenth
Century, i8q2, and Fortnightly Review, 1894. — Ed.
204 CRIMINAL SOCIOLOGY.
of substituting for our present penal organisation a
better system corresponding to the governing condi-
tions of crime, more effectual for social defence, and at
the same time less gratuitously disastrous for the
individuals with whom it deals.
The positive school, in addition to the partial
reforms proposed by Lombroso, and by myself in the
second edition of this work, has put forward in the
Cruninology of Garofalo a " rational system of punish-
ment," whereof it is desirable to give a summary.
I. Murderers (moral insensibility and instinctive
cruelty) who commit —
Murder for greed, or other selfish \
gratification \ Criminal Lunatic Asylums : or
Murder unprovoked by the victim / the death penalty.
Murder with attendant cruelly )
II. Violent or Impulsive Characters (de-
ficiency of the sense of pity, with prejudices on the
subject of honour, on the duty of revenge, &c.).
Adults who commit —
Violent assault suddenly provoked | Removal of the offender from the
by a cruel injury [• neighbourhood of the victim or
Justifiable homicide in self-defence j his family.
} Transportation to an island, colony,
or village — at liberty, under
supervision (for an indefinite
period, with from 5 to 10 years'
supervision).
t, r, . . J . , \ Damages and fine : heavy for such
Bodily mjury during a quarrel; ^s ^n pay. Alternative pen-
slight and transitory malice;! alty :-dcduction from wages,
blows; threats; slander; verbal f or forced labour. Imprisonment
insults I • c t \
] in case of refusal.
Malicious injury or disfigurement ;) ^■"i'"'"^; '""^'•", ""fT ^^% ^^^'
mntilntmn . r.n. or «,.,r.„. ^;^K t^"^"^'^! or _epileptic), or Trans-
mutilation ; rape or outrage with
violence ; restraint on personal
liberty
epti
portation for an indefinite period,
with supervision from 5 to 10
years.
PRACTICAL REFORMS. 205
Young persons who commit —
1 Criminal lunatic asylums (for
those with congenital tenden-
cies).
Penal colony in case of relapse.
Transportation without constraint.
I III. Dishonest Criminals. Adults who com-
mit—
Habitual theft, swindling, incendiar-) Lunatic asylums (if insane or epi-
ism, forgery, extortion j leptic). Transportation.
(Labour-gangs (unfixed periods) ;
or suspension of right to exercise
a profession, until camplete
reparation of damage.
#
Peculation ; embezzlement ; sale of) Loss of office. Suspension of
offices ; abuse of authority j civil rights. Fine. Restitution.
... . ,. . , "k Reparation of damage (with op-
Incendiarism; vindictive destruc- 1 tional imprisonment). Criminal
tion of property (without personal Y j^j^^^j^ ^^^^^^^ (^^ the insane).
injury) j Transportation (for recidivists).
Bankruptcy, when due to malprac- 1 Restitution. Prohibition to trade,
tice / or to discharge public functions.
Uttering false coin ; forgery of stock j Imprisonment (unfixed periods)
and certificates ; personation, ? and fine, in addition to loss of
false witness, &c. ' office, and restitution.
Bigamy, palming or concealment of 1 ti • 1. . r r ■, • ,
^jj.tj^ '^ '' I Banishment for unfixed penods.
Young persons who commit —
_, ,^ .... o ) An agricultural colony (for unfixed
Theft, swindling, &c | periods).
•IV. Persons guilty of —
Outbreaks: resistance or disobedi-) , • . #<• /.,.,,
ence to authority ) Imprisonment (for unfixed penods).
In other words, the system of repression proposed
by M. Garofalo amounts to this : —
15
206
CRIMINAL SOCIOLOGY.
Absolute elimination of the crim-
inal
Relative elimination
Reparation of damages
Fine (going to the State)
Indemnification of the victims
[ Penalty of death.
Criminal lunatic asylum.
Transportation with liberty.
Perpetual banishment.
Banishment for various periods.
Agricultural colonies.
Interdiction from a particula:
neighbourhood.
(By payment of money.
Deduction from wages.
Forced labour, without imprison-
ment.
Imprisonment for fixed periods for special offences (forgery and out-
breaks) ; or as alternative to indemnification or forced labour.
Interdiction of certain professions and public functions.
M. Liszt also, agreeing with the positive school in
regard to the necessity of a radical reform in the penal
system, yet with certain reservations, has propounded
a scheme, which, however, as it does not sufficiently
consider various classes of criminals, whom he divides
merely into the habitual and the occasional, would
need completion, especially in comparison with the
well-reasoned scheme of Garofalo. M. Liszt's system
is as follows : —
Punishment hy fines.
In proportion to the property of the^
offender — not alternative with im-
prisonment
Capable of being worked out by
forced labour without imprison-
ment
For offences (with alternative im-
prisonment).
For contraventions of the law
(without imprisonment).
Conditional sentences.
For first offenders condemned to im-'
prisonment, with or without sure
ties for three years
.For offences punishable by im
prisonment.
PRACTICAL REFORMS. 207
Imprisonment (for an indeterminate period, a maximum and minimum
being enacted).
Separate confinement — six weeks to two years.
House of detention (separate for] 2 to 15 years (with police super-
one year, then gradual relaxa- \ vision and assistance of dis-
tion) j charged prisoners) — or for life.
Indemnifications (always as a civil liability) added to other penalties.
I believe, however, that it is necessary, before laying
down practical and detailed schemes, more or less
complete, to establish certain general criteria, based
upon the anthropological, physical, and social data of
crime, such as may lead up to a positive system of
social defence.
These fundamental criteria, it seems to me, can be
reduced to the three following : — (i) No fixity in the
periods of segregation of criminals ; (2) the social
and public character of the exaction of damages ; (3)
the adaptation of defensive measures to the various
types of criminals.
I. For every crime which is committed, the problem
of punishment ought no longer to consist in ad-
ministering a particular dose, as being proportionate
to the moral culpability of the criminal ; but it should
be limited to the question whether by the actual con-
ditions (breach of law or infliction of injury) and by
the personal conditions (the anthropological type of
the criminal) it is necessary to separate the offender
from his social environment for ever, or for a longer
or shorter period, according as he is or is not regarded
as capable of being restored to society, or whether it
is sufficient to exact from him a strict reparation of
the injury which he has inflicted.
Under this head there is a radical contradiction.
208 CRIMINAL SOCIOLOGY.
The existing schemes of punishment, differing in
their machinery (and out of harmony with the
sentence of the judge, often even with the terms of
the law), are all based on the principle of fixed
periods of punishment, graduated into hundreds and
thousands of possible doses, and have regard far more
to the crime than to the criminal. On the other
hand we have the positive system of punishment,
based on the principle of an iinfixed segregatioti of the
criminal, which is a logical consequence of the theory
that punishment ought not to be the visitation of a
crime by a retribution, but rather a defence of society
adapted to the danger personified by the criminal.
This principle of unfixed punishment is not new,
but it is only the positive theory which has given it
system and life. The idea of justice as assigning
punishment to a crime, measured out by days and
weeks, is too much opposed to the principle of the
indeterminate sentence to allow it to receive any
systematic trial under the sway of the classical theories.
There has been only an isolated and exceptional use
of it here and there, such as the seclusion of mad
criminals in special asylums, " during her Majesty's
pleasure," in England. Nevertheless, personal free-
dom (which is held to be violated by seclusion for
unfixed periods) is greatly respected by the English
people.
The fundamental principle of law is that of a
restriction imposed by the necessity of social ex-
istence. It is evident, therefore, to begin with, that
seclusion for an unfixed period, as for life, is in no
way irreconcilable with this principle of law, when
PRACTICAL REFORMS. 209
imposed by necessity. Thus it has been proposed,
even by the classical school, as a mode of compensa-
tion or adjustment.
If, indeed, we admit an increase of punishment
for a first relapse, it is logical that this increase
should be proportional to the number of relapses,
until we come to perpetual seclusion or transporta-
tion, and even to death, as under the mediaeval laws.
So that there are some of the classical school who, by
way of being logical if not practical, and refusing to
admit progressive increase, begin by refusing increase
in any degree, even for a first relapse.
Moreover, if the jurists agree in allowing condi-
tional liberation, before the term assigned in the
sentence, when the prisoner seems to have given
proof of amendment, the natural consequence, by
mere abstract logic, ought to be a prolongation of
punishment for the prisoner who is not amended, but
continues to be dangerous.
This is admitted, amongst others, by Ortolan,
Davesies de Pontes, and Roeder, who quote as
favourable, though only for recidivists, Henke
Stelzer, Reichmann, Mohl, Groos, von Struve, von
Lichtenberg, Getting, Krause, Ahrens, Lucas
Bonneville, Conforti, and others, amongst students
of criminality ; and Ducpetiaux, Ferrus, Thomson,
Mooser, Diez, Valentini, and D'Alinge amongst
prison experts.
After this first period, the principle of segregation
for an unfixed term, as a basis for the penal system,
has been supported by Despine, and developed by a
few German writers. These latter have insisted
210 CRIMINAL SOCIOLOGY,
especially on the disadvantages of the penal systems
inspired by the classical theories, though they run
somewhat to excess, like Mittelstadt, who proposed
the re-establishment of the brutal punishment of
flogging.
In corporal punishments, it is true, there would be
a certain gain of efficaciousness, particularly against
such hardened offenders as the born criminals, so that
there is a reaction in favour of these punishments.
M. Roncati, for instance, writing of prison hygiene,
says that he would be glad to see "the maternal
regime," with its salutary use of physical pain before
the child has developed a moral sense ; and if
flogging is objectionable, resort might be had to
electricity, which is capable of giving pain without
being dangerous to health or revolting. Similarly
Bain says that the physiological theory of pleasure
and pain has a close relation to that of rewards and
punishments, and that, as punishment ought to be
painful, so long as it does not injure the convict's
health (which imprisonment is just as likely to do),
we might have recourse to electric shocks, which
frighten the subject by their mysterious power, with-
out being repugnant Again, the English Commis-
sion of Inquiry into the results of the law of penal
servitude declared in its report that, *' In English
prisons, disciplinary corporal punishments (formerly
the lash, then the birch) are inflicted only for the
most serious offences. The evidence has shown that
in many cases they produce good results."
Nevertheless corporal punishments, as the main
form of repression, even when carried out with less
PRACTICAL REFORMS. 211
barbarous instruments, are too deeply opposed to the
sentiment of humanity to be any longer possible in a
penal code. At the same time they are admissible as
disciplinary punishments, under the form of cold
baths, electric shocks, &c., all the more because,
whether prescribed by law or not, they are inevitable
in prisons, and, when not regulated by law, give rise
to many abuses, as was shown at the Stockholm
Prison Conference in 1878.
I agree with Kirchenheim that Dr. Kraepelin's
scheme of seclusion for unfixed periods is more
practical and hopeful. When the measure of punish-
ment is fixed beforehand, the judge, as Villert says,
•* is like a doctor who, after a superficial diagnosis,
orders a draft for the patient, and names the day
when he shall be sent out of hospital, without regard
to the state of his health at the time." If he is cured
before the date fixed, he must still remain in the
hospital ; and he must go when the time is up, cured
or not
Semal reached the same conclusion in his paper on
" conditional liberation," at the second Congress of
Criminal Anthropology.
And this notion of segregation for unfixed periods,
put forward in 1867 for incorrigible criminals by the
Swiss Prison Reform Association, has already made
great progress, especially in England and America,
since the Prison Congress of London (1872) discussed
this very question of indefinite sentences, which the
National Prison Congress at Cincinnati had approved
in the preceding year.
In 1880 M. Garofalo and I both spoke in favour of
212 CRIMINAL SOCIOLOGY,
indefinite segregation, though only for incorrigible
recidivists ; and the same idea was strikingly sup-
ported in M. Van Hamel's speech at the Prison
Congress at Rome (1885). The eloquent criminal
expert of Amsterdam, speaking " on the discretion
which should be left to the judge in awarding punish-
ment," made a primary distinction between habitual
criminals, incorrigible and corrigible, and occasional
criminals. " For the first group, perpetual imprison-
ment should depend on certain conditions fixed by
law, and on the decision of the judge after a further
inquiry. For the second group, the application of an
undefined punishment after the completion of the
first sentence will have to depend in the graver cases
on the conditions laid down by law, and in less
serious cases upon the same conditions together with
the decision of the judge, who will always decide
from time to time, after further inquiry, as to the
necessity for prolonging the imprisonment. For the
third group, the judge will have to be limited by law,
in deciding the punishment, by special maximums,
and with a general minimum."
The Prison Congress of Rome naturally did not
accept the principle of punishment for unfixed
periods. More than that, advancing on the classical
tendency, it decided that " the law should fix the
maximum of punishment beyond which the judge may
not in any case go ; and also the minimum, which
however may be diminished when the judge considers
that the crime was accompanied by extenuating
circumstances not foreseen by the law."
It is only of late years, in consequence of the reaction
PRACTICAL REFORMS. 213
against short terms of imprisonment, that the principle
of segregation for unfixed periods has been developed
and accepted by various writers, in spite of the feeble
objections of Tallack, Wahlberg, Lamezan, von
Jagemann, &c.
Apart, also, from theoretical discussion, this prin-
ciple has been applied in a significant manner in the
United States, by means of the " indeterminate
sentence." The House of Correction at Elmira (New
York) for young criminals carries into effect, with
special regulations of physical and moral hygiene, the
indeterminate imprisonment of young prisoners ; and
this principle, approved by the Prison Congresses at
Atalanta (1887), Buffalo (1888), and Nashville (1889),
has been applied also in the New York prisons, and in
the States of Massachusetts, Pennsylvania, Minnesota,
and Ohio.
M. Liszt proposes that the indeterminate character
of punishment should be only relative, that is to say,
limited between a minimum and a maximum, these
being laid down in the sentence of the judge. Special
commissions for supervising the administration of
punishment, consisting of the Governor of the prison,
the Public Prosecutor, the judge who heard the case,
and two members nominated by Government (instead
of the court which passed sentence, as proposed by
Villert and Van Hamel), should decide on the actual
duration of the punishment, after having examined
the convict and his record. Thus these commissions
would be able to liberate at once (with or without
conditions) or to order a prolongation of punishment,
especially for habitual criminals.
214 CRIMINAL SOCIOLOGY.
With the formation of these commissions there
might be associated the prison studies and aid of
discharged prisoners referred to on a former page.
But I think that this proposal of M. Liszt is
acceptable only for commissions of supervision, or of
the execution of punishment, such as already exist in
several countries, with a view solely to prison admini-
stration and benevolence, and in which of course the
experts of criminal anthropology ought to take part,
who, as I have suggested, should be included in every
preliminary criminal inquiry. As for the determina-
tion of the maximum and minimum in such a sentence,
I believe it would not be practicable ; the acting com-
missions might find it necessary to go beyond them,
and it would be opposed to the very principle of
indeterminate segregation. The reason given by M.
Liszt, that with this provision the contrast with actual
systems of punishment would be less marked, does
not seem to me decisive ; for the principle we main-
tain is so radically opposed to traditional theories and
to legislative and judicial custom that this optional
passing of the limits would avoid no difficulty, whilst
it would destroy the advantages of the new system.
In other words, when the conditions of the act
committed and the criminal who has committed it
show that the reparation of the damage inflicted is
not sufficient by way of a defensive measure, the judge
will only have to pronounce in his sentence an in-
definite detention in the lunatic asylum, the prison
for incorrigibles, or the establishments for occasional
criminals (penal colonies, &c.).
The execution of this sentence will be rendered
PRACTICAL REFORMS. 21 S
definite by successive steps, which will no longer be
detached, as they now are, from the action of the
magistrate, and taken without his knowledge, but
will be a systematic continuation of his work. Per-
manent commissions for the supervision of punish-
ment, composed of administrative functionaries,
experts in criminal anthropology, magistrates, and
representatives of the Public Prosecutor and the
defence, would render impossible that desertion and
oblivion of the convict which now follow almost
immediately on the delivery of the sentence, with the
execution of which the judge has nothing to do, except
to see that he is represented. Pardon, or conditional
liberation, or the serving of the full punishment, are
all left at present to the chance of a blind official
routine. These commissions would have great social
importance, for they would mean on one hand the
protection of society against imprudent liberation of
the most dangerous criminals, and on the other hand
the protection of the less dangerous against the
danger of an imprisonment recognised as excessive
and unnecessary.
Allied to the principle of indeterminate segrega-
tion is that of conditional release, which with the
progressive prison system, known as the Irish, is now
accepted in nearly all European countries. But
conditional liberation in the system of definite
punishments, without distinction amongst the types
of criminals, is both contradictory in theory and
ineffectual in practice. At present, indeed, it has
only a mechanical and almost impersonal applica-
2l6 CRIMINAL SOCIOLOGY.
tion, with one fallacious test, that of the alleged
" good conduct " of the prisoner, which, according to
the English Inquiry Commission in 1863, "can only
have the negative value of the absence of grave
breaches of discipline."
It will be understood that conditional release, as it
would be organised in the positive system of indeter-
minate segregation, ought only to be granted after a
physio-psychological examination of the prisoner, and
not after an official inspection of documents, as at
present. So that it will be refused, no longer, as now,
almost exclusively in regard to the gravity of the
crime, but in regard to the greater or less re-adapta-
bility of the criminal to social conditions. It will
therefore be necessary to deny it to mad and born
criminals who are guilty of great crimes.
Conditional liberation is now carried out under the
special supervision of the police ; but this is an in-
effectual measure for crafty criminals, and disastrous
for occasional criminals, who are shut out by the
supervision from re-adaptation to normal existence.
The system of indeterminate segregation renders all
special supervision useless. Moreover, this duty only
distracts policemen by compelling them to keep an
eye on a (cw hundred liberated convicts, and to neg-
lect thousands of other criminals, who increase the
number of unknown perpetrators of crime.
Similarly as to the discharged prisoners' aid
societies, which, notwithstanding their many senti-
mental declamations, and the excellence of their in-
tentions, continue to be as sterile as they are
benevolent The reason here also is that they
PRACTICAL REFORMS. 217
forget to take into account the different types of
criminals, and that they are accustomed to give
their patronage impartially to all discharged
prisoners, whether they are reclaimable or not
It must not be forgotten, moreover, that this aiding
of malefactors ought not to be exaggerated when
there are millions of honest workmen more un-
fortunate than these liberated prisoners. In spite
of all the sentimentalism of the prisoners' aid
societies, I believe that a foreman will always be
in the right if he chooses an honest workman for
a vacancy in his workshops in preference to a
discharged prisoner.
At the same time these societies may produce
good results if they concern themselves solely with
occasional criminals, and especially with the young,
and make their study of crime contribute to the
training of future magistrates and pleaders..
2. The second fundamental principle of the posi-
tive system of social defence against crime is that of
indemnification for damage, on which the positive
school has always dwelt, in combination with radical,
theoretical, and practical reforms.
Reparation of damage suffered by the victims of
crime may be regarded from three different points of
view: — (i) As an obligation of the criminal to the
injured party ; (2) as an alternative for imprisonment
for slight offences committed by occasional crimi-
nals ; and (3) as a social function of the State on
behalf of the injured person, but also in the indirect
and not less important interest of social defence.
2l8 CRIMINAL SOCIOLOGY.
The positive school has affirmed the last two re-
forms— the second on the initiative of Garofalo and
Puglia, and the third on my own proposal, which, as
being more radical, has been more sharply contested
by the classical and eclectic schools.
In my treatise on " The Right of Punishment as
a Social Function," I said : " Let us not be told that
civi^ reparation is no part of penal responsibility. I
can see no real difference between the payment of
a sum of money as a fine and its payment as
damages ; but more than that, I think a mistake
has been made in separating civil and penal measures
too absolutely, whereas they ought to be conjoined
for defensive purposes, in preventing certain particular
anti-social acts." And again, classifying the measures
of social defence (" measures of prevention, repara-
tion, repression, and elimination "), I said in regard to
measures of reparation : " Our proposed reform is
not intended to be theoretical merely, for indeed it
may be said already that this liability to indemnify is
established in the majority of cases ; but it should be
above all a practical reform, in the sense that, in-
stead of separating civil and penal measures, we shall
make their joint application more certain, and even
require special regulations to compel the criminal
judges, for instance, to assess the damages, and so
avoid the delays and mischances of a new trial
before the civil judges, and to compel the Public
Prosecutor to make an official demand, even when
through ignorance or fear there is no action on the
part of the injured person, that the criminal should
be condemned to make good the loss which he has
PRACTICAL REFORMS. 219
inflicted. It will then be seen that the fear of having
to make strict restitution will be a spur to the dili-
gence of the well-to-do, in regard to involuntary
offences, whilst for the poor we shall be able to
impose work on behalf of the injured person in place
of pecuniary damages."
Shortly afterwards Garofalo wrote : " In the opinion
of our school, for many offences, especially slighter
offences against the person, it would be serviceable to
substitute for a few days' imprisonment an effectual
indemnification of the injured party. Reparation
of damage might become a genuine penal substitute,
when instead of being, as now, a legal consequence, a
right which can be enforced by the rules of civil pro-
cedure, it would become an obligation from which
the accused could in no way extract himself."
Of all the positive school, Garofalo has insisted
most strongly on these ideas, enlarging upon them in
various proposals for the practical reform of procedure.
The principle has made further progress since the
speech of M. Fioretti at the first Congress of Crimi-
nal Anthropology (Rome, 1885), which adopted the
resolution brought forward by MM. Ferri, Fioretti,
and Venezian : " The Congress, being convinced of
the importance of providing for civil indemnification,
in the immediate interest, not only of the injured
party, but also of preventive and repressive social
defence, is of opinion that legislation could most
expeditiously enact the most suitable measures
against such as cause loss to other persons, and
against their accomplices and abettors, by treating
the recovery of damages as a social function as-
220 CRIMINAL SOCIOLOGY,
signed to its officials, that is to say, to the Public
Prosecutor at the bar, to the judges in their sen-
tences, to the prison officials in the ultimate pay-
ment for prison labour, and in the stipulation for
conditional release."
The classical principle that indemnification for loss
caused by an unlawful act is a purely civil and private
obligation of the offender (like that created by any
breach of contract !), and that in consequence it ought
to be essentially distinct from the penal sentence,
which is a public reparation, has inevitably caused
the complete oblivion of indemnification in every-day
judicial practice. For the victims of crime, finding
themselves compelled to resort to the courts, and
fearing the expense of a civil trial to give effect to
the sentence of damages and interest thereon, have
been driven to abandon the hope of seeing their loss
actually and promptly compensated. Hence the
necessity for some paltry compromise, which has
to be accepted almost as a generous concession
from the offender, together with the revival of
private vengeance, and a loss of confidence in the
reparatory action of social justice.
Even in the scientific domain it has come about
that criminal experts have abandoned the question
of indemnification to the civil experts, and these in
their turn have almost suffered jt to pass into oblivion,
inasmuch as they always regarded it as belonging to
matters of penal law and procedure.
It is only by the radical innovation of the positive
school that this legal custom has received new energy
and vitality.
PRACTICAL REFORMS. 221
I do not, however, intend in this place to concern
myself with indemnification from the first point of
view, namely, the forms of procedure necessary to
render it more strict and effectual, such as the official
demand and execution by the Public Prosecutor, even
when no action is brought by the injured party ; the
fixing of the damages in every penal sentence ; the
immediate lien and claim upon the goods of the
condemned person, so as to avoid the pretence of
inability to pay ; the paying down of the sum, or a
part of' the salary or wages of solvent defendants ;
compulsory labour by those unable to pay ; the
assignment of part of the prison wages for the
benefit of the victims ; the payment of all or most
of the damages as a necessary condition ot pardon
or conditional release ; the establishment of a treasury
of fines for prepayment to the family of the victims ;
the liability of the heirs of the condemned persons
for indemnifications, and so forth.
All these propositions are in sharp contrast with
Art. 37 of the new Italian penal code, which has
given no other guarantee to the victims of offences
than the superfluous, or ironical, or immoral declara-
tion that " penal condemnation does not prejudice
the right of the injured person to restitution and in-
demnification " — as though there were any doubt of
the fact.
I only wish to insist on the question of principle,
that is, on the essentially public character which we
assign to indemnification as a social function. For
us, to compare the liability of the criminal to repair
the loss caused by his crime with the liability arising
from breach of contract is simply immoral.
i6
222 CRIMINAL SOCIOLOGY,
Crime, just as it implies a social reaction in the
form of an indefinite segregation of the criminal,
when the act is serious and the author dangerous,
ought also to imply a social reaction in the shape cf
indemnification, accessory to segregation when that
is necessary, or adequate by itself for social defence
when the act is not serious, and the author is not
dangerous. For slight offences by occasional crimi-
nals, strict indemnification will, on the one hand,
avoid the disadvantages of short terms of imprison-
ment, and will, on the other hand, be much more
efficacious and sensible than an assured provision of
food and shelter, for a few days or weeks, in the
State prisons.
Indemnification may naturally take two forms, as
a fine or an indemnity payable to the State, and as
an indemnity or a reparation payable to the injured
person.
It may also be added that the State should be
made responsible for the rights of the victims, and
give them immediate satisfaction, especially for
crimes of violence, recouping itself from the offender,
as it does, or ought to do, for legal costs.
The evolution of punishment is a striking proof of
this. First, the reaction against crime is an entirely
private concern ; then it assumes a weaker form in
pecuniary reparation, whereof, by and by, a portion
goes to the State, which presently retains the whole
sum, leaving to the victim the poor consolation of
proceeding separately for an indemnification. Nothing
therefore could be more in accord with this evolution
of punishment than the proposed reform, whereby
PRACTICAL REFORMS. 223
the indemnification of a merely private injury, as it
is regarded in the primitive phase of penal justice,
becomes a public function, so far as it is the legal
and social consequence of the offence.
The classical principles in this respect, and the
practical consequences which flow from them, are
more like a humorous farce than an institution of
justice ; and it is only the force of habit which
prevents the world from realising its full comicality.
In fine, citizens pay taxes in return for the public
services of the State, amongst which that of public
security is the chief. And the State actually ex-
pends millions every year upon this social func-
tion. Nevertheless, every crime which is committed
is followed by a grotesque comedy. The State,
which is responsible for not having been able to
prevent crime, and to give a better guarantee to
the citizens, arrests the criminal (if it can arrest
him — and seventy per cent, of discovered crimes go
unpunished). Then, with the accused person before
it, the State, " which ought to concern itself with
the lofty interests of eternal justice," does not con-
cern itself with the victims of the crime, leaving the
indemnification to their prosaic " private interest,"
and to a separate invocation of justice. And then
the State, in the name of eternal justice, exacts from
the criminal, in the shape of a fine payable into the
public treasury, a compensation for its own defence —
which it does not secure, even when the crime is only
a trespass upon private property !
Thus the State, which cannot prevent crime, and
can only repress it in a small number of cases, and
224 CRIMINAL SOCIOLOGY.
which fails accordingly in its first duty, for which the
citizens pay it their taxes, demands a price for all
this ! And then again the State, sentencing a million
and a half to imprisonment within ten years, puts
the cost of food and lodging on the shoulders of the
same citizens, whom it has failed either to defend or
to indemnify for the loss which they have suffered i
And all in the name of eternal retributive justice.
This method of "administering justice "'must be
radically altered. The State must indemnify indi-
viduals for the damage caused by crimes which it
has not been able to prevent (as is partially recog-
nised in cases of public disaster), recouping itself
from the criminals.
Only then shall we secure a strict reparation of
damage, for the State will put in motion its in-
exorable fiscal machinery, as it now does for the
recovery of taxes ; and on the other hand the
principle of social community of interests will be
really admitted and applied, not only against the
individual but also for him. For we believe that if
the individual ought to be always responsible for the
crimes which he commits, he ought also to be always
indemnified for the crimes of which he is the victim.
In any case, as the indefinite segregation of the
criminal is the fundamental principle of the positive
system of social defence against crime, apart from
the technical systems of imprisonment and detention,
so indemnification as a social function is a second
essential principle, apart from the special rules of
procedure for carrying it into effect
PRACTICAL REFORMS. 225
These two fundamental principles of the positive
system would still be incomplete if they did not come
into practical operation according to a general rule,
which leads up to the practical organisation of
social defence — that is to say, the adaptation of
defensive measures to the various criminal types.
The tendency of the classical theories on crime
and prison discipline is in sharp contrast, for their
ideal is the " uniformity of punishment " which lies
at the base of all the more recent penal codes.
If for the classical school the criminal is but an
average and abstract type, the whole difference of
treatment is, of course, reduced to a graduation of
the " amount of crime " and the " amount of punish-
ment." And then it is natural that this punitive
dosing should be more difficult when the punish-
ments are different in kind, and not very similar in
their degrees of coincident afflictive and correctional
power. Thus the ideal becomes a single punishment,
apportioned first by the legislature and then by the
judge, in an indefinite number of doses.
Here and there a solitary voice has been heard,
even amongst the classical experts, objecting to this
tendency towards dogmatic uniformity ; but it has
had no influence. The question brought forward by
M. D'Alinge at the Prison Congress in London
{Proceedings , 1872, p. 327), "whether the moral
classification of prisoners ought to be the main
foundation of penitentiary systems, either in as-
sociation or on the cellular plan," which he himself
decided in the aflfirmative, was not so much as
discussed, and it was not even referred to at the
226 CRIMINAL SOCIOLOGY.
successive Congresses at Stockholm (1878). Rome
(1885), and St. Petersburg (1889). On the contrary,
the Congress at Stockholm decided that, " reserving
minor and special punishments for certain slight
infractions of the law, or for such as do not point
to the corrupt nature of their authors, it is desirable
to adopt for every prison system the greatest possible
legal assimilation of punishments by imprisonment,
with no difference except in their duration, and the
consequences following upon release." '
To positivists, the " uniformity of punishment," even
of mere detention, appears simply absurd, since it
ignores the capital fact of different categories of
criminals.
There must be homogeneity between the evil and
its remedy; for, as Dumesnil says, "the prisoner is
a moral (I would add a physical) patient, more or
less curable, and we must apply to him the great
principles of the art of medicine. To a diversity of
ills we must apply a diversity of remedies."
In this connection, however, we must avoid the two
extremes, uniformity of punishment and the so-called
individualisation of punishment, the latter especially
in fashion amongst American prison experts. No
doubt it would be a desirable thing to apply ?
particular treatment to each convict, after a physical
and psychological study of his individuality, and ol
the conditions which led him into crime ; but this
is not practicable when the number of prisoners is
' Ptocee(iif7gs,\. 138-70, 5SI-7, 561-3. Now and then, however, a
prison expert of more positive tendencies maintains " the very great
use, or rather the scientific necessity, of the classification of prisoners
as a basis lor the punitive and prison system " (Beltrani Scalia.)
PRACTICAL REFORMS. 227
very great, and the managing staff have no adequate
notions of criminal biology and psychology. How
can a governor individualise the penal treatment of
four or five hundred prisoners ? And does not the
cellular system, which reduces the characteristic
manifestations of the personal dispositions of
prisoners to a minimum, levelling them all by the
uniformity of routine and silence, render it im-
possible to observe and get to know the special
character of each condemned person, and so
specialising the discipline? Where, too, are we to
find the necessary governors and warders who would
know how to discharge this difficult duty ? The
solid fact that particular houses of correction or
punishment are in excellent condition when their
governors have the psychological intuition of a De
Metz, a Crofton, a Spagliardi, or a Roukawichnikoff,
and languish when he departs, strikingly demonstrates
that the whole secret of success lies in the spirit of
a wise governor, skilled in psychology, rather than in
the slender virtue of the cell.
Just as an imperfect code with good judges succeeds
better than a " monumental " code with foolish judges,
so a prison system, however ingenious and sym-
metrical, is worthless without a staff to correspond.
And as the question of the staff is always very
serious, especially for financial reasons, I believe that,
instead of the impracticable idea of individualisation
in punishment, we ought to substitute that of classifica-
tion, which is equally efficacious and more easily
applied. It cannot be denied that criminal anthro-
pologists are not all agreed on the classification of
228 CRIMINAL SOCIOLOGY.
criminals. But I have already shown that the
differences between proposed classifications are only
formal and of secondary importance ; and again, the
number of those who agree to the classification which
I have proposed increases day by day.
Before inquiring how we can practically organise
the positive system of social defence on the basis of
this anthropological classification of criminals, we
must bear in mind two rules, common to all the
technical proposals of the same system.
First, care must be taken that segregation does
not become or continue to be (as it is too often at
present) a welcome refuge of idleness and criminal
association, instead of a deprivation.
Penitentiaries for condemned prisoners — the
classical prison experts make no distinction be-
tween their cells for prisoners before trial and those
for convicts ! — should not be so comfortable as to
excite the envy (a vast injustice and imprudence)
of the honest and ill- fed rural labourer vegetating
in his cottage, or of the working-man pining in
his garret.
Secondly, the obligation to labour should be im-
perative for all who are in prison, except in case
of sickness. Prisoners should pay the State, not as
now for their tobacco and wine, but for food, clothes,
and lodging, whilst the remainder of their earnings
should go to indemnify their victims.
The classical theory declares that "the State," as
Pessina writes, "being compelled to adopt depriva-
tion of liberty as the principal means of penal
repression and retribution, contracts an absolute
PRACTICAL REFORMS. 229
obligation to provide those whom they punish in
this way not only with bodily sustenance, but also
with the means of supplying their intellectual and
moral needs," So the State maintains in idleness
the majority even of those who are said to be
" sentenced to hard labour," and the offence, after
it has served the turn of the offender, further assures
him free lodging and food, shifting the burden on to
honest citizens.
I cannot see by what moral or legal right the crime
ought to exempt the criminal from the daily necessity
of providing for his own subsistence, which he ex-
perienced before he committed the crime, and which
all honest men undergo with so many sacrifices.
The irony of these consequences of the classical
theories could not, in fact, be more remarkable. So
long as a man remains honest, in spite of pathetic
misery and sorrow, the State takes no trouble to
guarantee for him the means of existence by his
labour. It even bans those who have the audacity
to remind society that every man, by the mere fact
of living, has the right to live, and that, as work is
the only means of obtaining a livelihood, every man
has the right (as all should recognise the duty) of
working in order to live.
But as soon as any one commits a crime, the
State considers it its duty to take the utmost care of
him, ensuring for him comfortable lodging, plenty of
food, and light labour, if it does not grant him a
happy idleness ! And all this, again, in the name of
eternal and retributive justice.
It may be added that our proposals are the only
230 CRIMINAL SOCIOLOGY.
way of settling the oft-recurring question as to the
economic competition (by the price of commodities),
and the moral competition (in the regularity of work)
which prison labour unjustly wages with free and
honest labour. As a matter of fact, as prisoners can
only remain idle or work, they must clearly be made
to work. But they must be made to work at trades
which come less into competition with free labour ;
and it is especially necessary to give prisoners wages
equal to those of free labourers, on condition that they
pay the State for their food, clothes, and lodging,
whilst the remainder goes to indemnify their victims.
Over the prison gates I should like to carve that
maxim of universal application : *' He who will not
work, neither shall he eat."
V.
Since the novel proposals put forward half a century
ago, amongst others by doctors Georget and Brierre
de Boismont, a whole library of volumes has been
published in favour of criminal lunatic asylums. A
few voices here and there were heard in opposition or
reserve, but these have almost entirely ceased.
Criminal lunatic asylums were adopted in England
as early as 1786. In 1815 Tsthlehem Hospital was
appropriated to criminal lunatics, and the Broadmoor
Asylum was founded in 1863. Similar asylums exist
at Dundrum in Ireland (1850), at Perth in Scotland
(1858), at New York (1874), and in Canada (1877).
On the continent of Europe there is not to this day
a regular asylum for mad criminals, though France,
PRACTICAL REFORMS. 23I
after an experiment in treating condemned madmen
at Bicetre, opened a separate wing for them in the
prison at Gaillon. Holland has assigned to them
the hospital of Bosmalen (Brabant) ; Germany has
special wards in the establishments at Waldheim,
Bruchsaal, Halle, and Hamburg ;. and Italy, after
founding a special ward in 1876, at the establish-
ment for relapsed prisoners at Aversa, has converted
the Ambrogiana establishment at Montelupo in
Tuscany, into an asylum for insane convicts, and for
prisoners under observation as being of unsound
mind. The new Italian penal code, though not
openly recognising the foundation of asylums for
criminals acquitted on the ground of insanity, has,
in its general spirit of eclecticism, given judges the
power of handing them over to the competent
authority when it would be dangerous to release
them (Art 46). At the Montelupo Asylum criminals
acquitted on the ground of insanity are also detained,
at first under observation, then by a definite order
from the president of the Tribunal, who can revoke
his order on the petition of the family, or of the
authorities.
The inquiry into existing legislation on insane
criminals, undertaken by the " Society G^nerale des
prisons de Paris," showed that in France, Germany,
Austria- Hungary, Croatia, Belgium, Portugal, and
Sweden, the authors of crimes or offences who are
acquitted on the ground of insanity are withdrawn
from all control by the judicial authority, and en-
trusted to the more or less regular and effectual
control of the administrative authority. In England,
232 CRIMINAL SOCIOLOGY.
Holland, Denmark, Spain, and Russia, on the contraiy,
the judicial authority is empowered and even com-
pelled to order the seclusion of these individuals in
an ordinary or a criminal lunatic asylum.
Of the objections raised against this form of social
defence against insane criminals, I pass over that of
the cost, which is considerable ; for even from the
financial point of view I believe that the actual
system, which gives no guarantee of security against
madmen with criminal tendencies, is more costly to
the administration, if only by reason of the damage
which they cause. I also pass over the other objec-
tion, based on the violent scenes which are said to be
inseparable from the association of such prisoners ;
for experience has shown that forebodings are ill
founded in regard to criminal asylums where the
inmates are classified according to their tendencies,
under the direction of a staff with special knowledge,
who are able to prevent such outbreaks. In ordinary
asylums, on the other hand, a few insane criminals
are sufficient to render the maintenance of order very
difficult, and their inevitable and frequent outbreaks
have dire effects on the other patients.
The most serious and repeated difficulties in regard
to lunatic asylums spring from the very principles of
the defensive function of society.
It is said in the first place that the author of a
dangerous action is either a madman or else a
criminal. If he is a madman, he has nothing to
do with penal justice — so Fabret, Mendel, and others
have said ; his action is not a crime, for he had no
PRACTICAL REFORMS. 233
control over himself, and he ought to go to an
ordinary asylum, special measures b^ing taken for
him, as for every other dangerous madman. Or else
he is a criminal, and then he has nothing to do with
a lunatic asylum, and he ought to go to prison.
But there is a fallacy in this dilemma, for it leaves
out the intermediate cases and types, where particular
individuals are at the same time mad and criminal
And even if it were a question of madmen only, the
logical consequence would not be to bar out special
asylums, for it seems clear that if ordinary madmen
(not criminals, that is, not the authors of dangerous
actions) ought to go to an ordinary asylum, criminal
madmen, or madmen with a tendency to commit
dangerous or criminal actions, as well as those who
have committed them, ought to go to a special
asylum for this category of madmen. For, on the
other hand, we constantly see that administrative
authorities which observe the same rules for the
seclusion of ordinary and criminal madmen do not
prevent the release of the latter, some time after the
crime, when the disturbance of mind and even the
recollection of the deed are all but effaced ; and,
criminal madmen commit other violent or outrageous
excesses, very soon after they are left exposed to
their diseased tendencies.^
It may be answered that it is suiHcient to have
' M. Lunier, writing in 1881 of epileptics, and the method of treat-
ment and aid appropriate to them, says that of 33,000 known epileptics
in France, 5,200 only are in private or public asylums, whilst 28,000
remain with their families. From these figures it would appear very
probable that these 28,000 epileptics left at liberty commit crimes and
offences.
234 CRIMINAL SOCIOLOGY,
special wings in ordinary asylums, which would also
get over the repugnance of families against the asso-
ciation of their quiet and harmless patients with
murderous and outrageous madmen. But experience
has already proved that these special wards do not
work well, for it is too difficult with the same staff to
apply such varied treatment and discipline as are
necessary for ordinary and criminal lunatics.
Fabret says that " a so-called criminal, when he is
seen to be mad, should cease to be regarded as a
criminal, and ought purely and simply to resume his
ordinary rights."
But, in the first place, if a madman is distinguished
from all other inoffensive madmen by the grave fact
of having killed, or burned, or outraged, it is clear
that he cannot " purely and simply " return to the
same kind of treatment which is given to harmless
lunatics.
The truth is that this argument applies to a large
number of ideas which science is continually weeding
out, and which have proceeded on the assumption
that madness is an involuntary misfortune which
must be treated, and that crime is a voluntary fault
which must be chastised. It is evident on the other
hand that crime as well as folly, being the result of
abnormal conditions of the individual, and of the
physical and social environment, is always a question
for social defence, whether it is or is not accompanied
in the criminal by a more or less manifest and clinical
form of mental malady.
The same reply holds good for the second objection
to asylums for criminal madmen, when it is said that
PRACTICAL REFORMS. 2$$
a madman cannot, for the sole reason that he has
killed or stolen, be shut up indefinitely, perhaps for
ever, in an asylum.
Mancini, who was keeper of the seals, and at the
same time a great criminal pleader, aptly expressed
the ideas of the classical school when replying to an
interpellation of Deputy Righi on the foundation of
criminal lunatic asylums : — " I could never under-
stand how the same court, which is obliged by law
to acquit upon a verdict of the jury that the accused
is insane, and therefore not responsible, could also
decree the compulsory seclusion in an asylum, for
any period, of the same accused person. ... Is it
because he has committed a crime ? But that is not
true, for the man who did not know what he was
doing, and who for that reason has been declared
innocent before the law, and irresponsible, cannot
have committed a crime. There is consequently no
legal reason why he should lose the exercise and
enjoyment of that liberty which is not denied to
any other unfortunate beings who are diseased like
himself"
It would be impossible to put more clearly the
pure classical theory on crime and punishment ; but
perhaps it would be equally impossible to show less
solicitude for social defence against criminal attacks.
For it is certain that the mad murderer " has com-
mitted no crime " from the ethical and legal point of
view of the classical school ; but it is still more certain
that there is a dead man, and a family left behind
who may be ruined by the deed, and it is very prob-
able that this homicide, " innocent before the law,"
236 CRIMINAL SOCIOLOGY.
will renew his outrage on other victims — and at any
rate they are innocent.
And as for the indefinite period of seclusion in an
asylum, it is well to remember, from the point of view
of individual rights, that the formula with which a
mad criminal is committed to an asylum " during
her Majesty's pleasure " had its origin in England,
in the classic land of the habeas corpus — the sheet
anchor of the ordinary citizen. Again, it is easy to
see that the indefinite seclusion of mad criminals is
rendered necessary by the same reasons which create
the fundamental rule for criminals of every kind. It
may therefore come to a question of allowing or dis-
allowing the general principles of the positive school.
But it cannot be denied that they are unassailable,
both in theory and in practice. Crime is a phe-
nomenon as natural as madness — the existence of
society compels the organised community to defend
itself against every anti-social action of the individual
— the only difficulty is to adapt the form and duration
of this self-defence to the form and intensity (the
motives, conditions, and consequences) of the action.
Indefinite seclusion, therefore, in a special establish-
ment is inevitable on account of the special condition
of these individuals.
The practical considerations of social defence are
so strong that the great majority of classical criminal
experts now accept criminal lunatic asylums, in spite
of their manifest contradiction of the formal theories
of moral responsibility, on the strength of which these
asylums were, and still are, opposed by the intransi-
gents of the classice^l school. This is why the new
PRACTICAL REFORMS. 237
Italian penal code, in spite of its progressive aim, had
not the courage in 1889 to adopt them frankly ; and
in the definitive text, as in the ministerial draft, it took
refuge in an eclectic arrangement which has already
met with a crowd of obstacles, due to the vagueness
of the principles inspiring the code.
These criminal lunatic asylums ought to be of two
kinds, differing in their discipline, one for the insane
authors of serious and dangerous crimes, such as
homicide, incendiarism, rape, and the like ; and the
other for slighter crimes, such as petty theft, violent
language, outrages on public decency, and the like.
For the latter, seclusion should be shorter than for
the others. Thus in England convicts are sent to the
State Asylum at Broadmoor, whilst minor offenders
are sent to a county asylum.
Persons thus confined should be (i) prisoners
acquitted on the ground of insanity, or sentenced
for a fixed period, at the preliminary inquiry ; (2)
convicts who become insane during the expiation of
their sentence ; (3) insane persons who commit crimes
in the ordinary asylums ; (4) persons under observa-
tion for weak intellect in special wards, who have
been put on their trial, and given grounds for sus-
pecting madness.
At Broadmoor, on December 31, 1867, there were
389 male patients and 126 female ; and in 1883 there
were 381 males and 132 females, thus classified : —
Mad Criminals. Male. FemaL'v
Murder ^ .., .„ ... 155 ... 85
Attempted murder ... .„ Ill ... 18
Parricide 7 ... 6
Theft « ... 23 ... 3
17
238
CRIMINAL SOCIOLOGY.
Mad Criminals.
Incendiarism ...
Military offences
Attempted suicide
Male.
24
21
3
Female.
I
In Germany, in the prison at Waldheim, the pro-
portion of mad criminals to the corresponding classes
of ordinary criminals was as follows : —
Crimes.
In Prison
Homicide, actual or attempted
74
Murder and malicious wounding
51
Highway robbery with violence
... 64
Incendiarism
219
Rape
52
Indecent assault
... 299
Perjury
220
Military crimes
23
Crimes against property
... 5,116
Other offences
... 158
Total .„
... 6,276
Percentage
Insane.
17-6
9-8
12-5
6-8
5-8
57
27
217
19
06
27
That is to say, there was (i) a very large pro-
portion of madmen amongst the military offenders,
which may point to the effect of military life, or else
a careless selection for conscription, or both causes
taken together ; and (2) a greater proportion of mad
criminals amongst the more serious offenders, partly
because the authors of crimes of violence are sub-
jected to more strict and frequent observation for
madness.
It seems to me that this fact, which is also con-
firmed by the figures for England, is the most cogent
argument in favour of criminal lunatic asylums.
For born criminals, since, as Dr. Maudsley says,
we are face to face, if not exactly with a degenerate
species, at least with a degenerate variety of the
PRACTICAL REFORMS. 239
human species, and the problem is to diminish their
number as much as possible, a preliminary question
at once arises, namely, whether the penalty of death
is not the most suitable and efficacious form of social
defence against the anti-social class, when they
commit crimes of great gravity.
It is a question which for a century past has
divided the criminal experts and wearied the general
public, with perhaps more sentimental declamations
than positive contributions ; a question revived by
the positive school, which, however, only brought
it forward, without discussing it, at the first Congress
on Criminal Anthropology at Rome ; whilst it has
been recently settled by the new Italian penal code,
which is the first code amongst the leading States to
decree (January i, 1890) the legal abolition of the
death penalty, after its virtual abolition in Italy since
the year 1876, except for military crimes.
Amongst the classical experts, as amongst the
positivists, there are those who would abolish and
those who would retain the death penalty ; but the
disagreement on this subject is not equally serious
in the two camps. For whilst the classical aboli-
tionists almost all assert that the death penalty is
inequitable, the positivists are unanimous in declaring
it legitimate, and only a few contest its practical
efficacy.
It seems to me that the death penalty is prescribed
by nature, and operates at every moment in the life
of the universe. Nor is it opposed to justice, for
when the death of another man is absolutely neces-
sary it is legitimate, as in the cases of lawful self-
240 CRIMINAL SOCIOLOGY.
defence, whether of the individual or of society, which
is admitted by classical abolitionists such as Beccaria
and Carrara.
The universal law of evolution shows us also that
vital progress of every kind is due to continual selec-
tion, by the death of the least fit in the struggle for
life. Now this selection, in humanity as with the
lower animals, may be natural or artificial. It would
therefore be in agreement with natural laws that
human society should make an artificial selection,
by the elimination of anti-social and incongruous
individuals.
We ought not, however, to carry these conclusions
too far, for every problem has its relative bearings,
and positive observation, unlike logic, does not admit
simple and exact solutions. It must be observed that
this idea of artificial selection, though true, would lead
to exaggerated conclusions, if it were carried into the
sociological field without reserve, and without the
necessary balance between the interests and rights
of the community and of individuals. If this idea
were taken absolutely, indeed, it would render legiti-
mate and even obligatory an ultra-Spartan elimina-
tion of all children born abortive or incurably
diseased, or anti-social through their idiotcy or mental
insanity.
On the other hand, to recognise that the death
penalty may be legitimate as an extreme and excep-
tional measure is not to acknowledge that it is neces-
sary in the normal conditions of social life. Now it
cannot be questioned that in these normal conditions
society may defend itself otherwise than by death, as
PRACTICAL REFORMS. 24I
by perpetual seclusion or transportation, the failure
of which, by the escape of convicts, is too rare to be
decisive against it
The preventive and deterrent efficacy of the death
penalty is very problematical when we examine it
not by our own impressions as average human beings,
calmly and theoretically, but with the data of criminal
psychology, which is its only true sphere of observa-
tion. Every one who commits a crime is either
carried away by sudden passion, when he thinks of
nothing, or else he acts coolly and with premedita-
tion, and then he is determined in his action, not
by a dubious comparison between the death penalty
and imprisonment for life, but simply by a hope of
impunity. This is especially the case with born
criminals, whose main psychological characteristic
is an excess of improvidence, combined with moral
insensibility.
If a convict tells us that he fears death, this merely
means that he has the momentary impression, which
cannot, however, restrain him from crime ; for here
again, by the same psychological tendency, he will
be subject only to the criminal temptation.
And if it is true that, when the criminal has been
tried and condemned, he fears death more than im-
prisonment for life (always excepting condemned
suicides, and those who by their physical and moral
insensibility laugh at death up to the foot of the
scaffold), it is none the less necessary to try and to
condemn them.
Indeed statistics prove that the periodic variations
of the more serious crimes is independent of the
242 CRIMINAL SOCIOLOGY,
number of condemnations and executions, for they
are determined by very different causes. Tuscany,
where there has been no death penalty for a century,
is one of the provinces with the lowest number of
serious crimes ; and in France, in spite of the increase
of general crime and of population, charges of murder,
poisoning, parricide, and homicide, dropped from 560
in 1826 to 430 in 1888, though the number of execu-
tions diminished in the same period from 197 to 9.
The death penalty is an easy panacea, but it is far
from being capable of solving a problem so complex
as that of serious crime. The idea of killing off the
incorrigibles and the born criminals is easily conceived,
and Diderot, in his Letter to Landois, maintained that
it was a natural consequence of the denial of free-will,
saying : " What is the grand distinction between man
and man ? Doing good and doing harm. The man
who does harm ought to be extinguished, not pun-
ished." But as against this too facile notion we must
look to experience, and to the other material and moral
conditions of social life, for the necessary balance and
completion.
I will not further discuss the death penalty, for it
is by this time an exhausted question from the intel-
lectual standpoint, and has passed into the domain of
prejudice for or against, and this prejudice is con-
cerned rather with the more or less repugnant method
of execution than with the penalty itself. In its
favour there is the absolute, irrevocable, and instan-
taneous elimination from society of an individual
who has shown himself absolutely unadaptable, and
dangerous to society. But I hold that, if we would
PRACTICAL REFORMS. 243
draw from the death penalty the only positive utility
which it possesses, namely, artificial selection, then we
must have courage enough to apply it resolutely in all
cases where it is necessary from this point of view, that
is to say, to all born criminals, who are the authors of
the most serious crimes of violence. In Italy, for
example, it would be necessary to execute at least
one thousand persons every year, and in France
nearly two hundred and fifty, in place of the annual
seven or eight.
Otherwise the death penalty must be considered
as an unserviceable and neglected means of terror,
merely to be printed in the codes ; and in that case
it would be acting more seriously to abolish it
So regarded it is too much like those motionless
scarecrows which husbandmen set up in their fields,
dotted about with the foolish notion that the birds
will be frightened away from the corn. They may
cause a little alarm at first sight ; but by and by the
birds, seeing that the scarecrow never moves and
cannot hurt them, lose their fear, and even perch on
the top of it. So it is with criminals when they
see that the death penalty is never or very rarely
applied ; and one cannot doubt that criminals judge
of the law, not by its formulation in the codes, but by
its practical and daily application.
Since the deterrent efficacy of punishments in
general, including the death penalty, is quite insig-
nificant for the born criminals, who are insensible and
improvident, the rare cases of execution will certainly
not cure the disease of society. Only the slaughter
of several hundred murderers every year would have
244
CRIMINAL SOCIOLOGY.
a sensible result in the way of artificial selection ; but
that is more easily said than done. And 1 imagine
that, at normal periods, in no modern and civilised
State would a series of daily executions of the capital
sentence be possible. Public opinion would not endure
it, and a reaction would soon set in.^
In a manuscript register of executions in the Duchy
of Ferrara between 970 and 1870, I found that, ex-
cluding the nineteenth century, there were 5,627
' In every case I think that executions should take place in prison,
and by means of a poison administered as soon as the sentence takes
effect. In North America electricity has been tried, but executions
by this process appear to be as horrible and repulsive as those by the
guillotine, the garotte, the scaffold, or the rifle. (See the Aledico-Legal
Journal of New York. March and September, 1889.) Fiom the
'* Summarised Information on Capital Punishment," published by the
Howard Association in 1881, I take the following figures on capital
punishment in Europe and America : —
State.
Austria (1870-9) ...
France (1870-9) ...
Spain (1868-77) ...
Sweden (1869-78).,,
Denmark (1868-77)
Bavaria (1870-9) ...
Italy (1867-76) ..,
Germany, North (1869-78)
England (1860-79)
Ireland (1860-79)
Scotland (1860-79)
Australia and New Zealand (1870-9)... 453
United States, about 2,500 murders annually ; about 100
executions and 100 lynchings annually.
In Finland, between 1824 and 1880 there was no execution. In
Holland, Portugal, Koumania, and Italy, capital punishment is abolished
by law ; and in Belgium virtually. Switzerland also has abolished it,
but a few cantons, under the influence of a few atrocious and recurrent
crimes, revived it in their codes, but did not carry it out. In the United
States it has been abolished in Michigan, Wisconsin, Rhode Island, and
Maine. An inquiry into the legislation and statistics relating to murder
in Europe and America was instituted by Lord Granville in July, 1880,
and the results were published in 1881. ("Reports oa the Laws of
Foreign Countries respecting Homicidal Crime.")
Death
Sentences.
Execution*.
. 806 .
16
. 198 .
93
. 291
. 126
• 32 •
3
. 94 .
I
• 249 .
7
■ 392 .
34
. 484 .
I
. 665 .
. 372
. 66 .
. 36
. 40 .
IS
• 453 •
. 123
PRACTICAL REFORMS. 245
executions in 800 }ears (3,981 for theft, and 1,009 ^o^
homicide), that is an average of 700 in each century,
in the city of Ferrara alone. And at Rome, according
to the records of the Convent of St. John the Be-
headed, between 1500 and 1770 there were 5,280
executions, or 1.955 i" each century, in the city of
Rome alone. Now, if we consider the proportion of
population in Ferrara and Rome to that of Italy as a
whole, we reach an enormous number of executions
in former centuries, which can scarcely have been
fewer than four hundred every year.
These were serious applications of the death
penalty, to which we certainly owe in some degree
the purification of society by the elimination of
individuals who would otherwise have swelled their
criminal posterity.
In conclusion, if we wish to treat the death penalty
seriously, and derive from it the only service of which
it is capable, we must apply it on this enormous
scale ; or else, if it is retained as an ineffectual terror,
we should be acting more seriously if we were to
expunge it from the penal code, after excluding it
from our ordinary practice. And as I shall certainly
not have the courage to ask for the restoration of
these mediaeval modes of extermination, I am still,
for the practical considerations above mentioned, a
convinced abolitionist, especially for such countries as
Italy, where a more or less artificial and superficial
current of public opinion is keenly opposed to capital
punishment.
Setting aside the death penalty, as unnecessary in
246 CRIMINAL SOCIOLOGY,
normal times, and inapplicable in the only proportions
which would make it efficacious, for the born criminals
who commit the most serious crimes, there remains
only a choice between these two modes of elimination
— transportation for life and indefinite seclusion.
This is the only choice for the positivists ; for we
cannot attach much importance to the opinion of the
German jurists, Holtzendorff, Geyer, and others, who
would do away with perpetual imprisonment alto-
gether. Professor Lucchini took up this theory in
Italy, saying that the personal freedom of the convict
ought to be limited in its exercise, but not suppressed
as a right, and that imprisonment for life destroys
" the moral and legal personality of the criminal in
one of its most important human factors, the sociable
instinct." He added that punishment " ought not to
become exhausted by excess of duration."
Surely it is not speaking seriously to say that the
right of the individual cannot be suppressed if neces-
sity demands it, when we see it done every day in
cases of legitimate self-defence ; and that punishment
is exhausted by excess of duration, when it is pre-
cisely the duration of banishment from one's kind
which constitutes the only real efficacy of punish-
ment ; and to speak of the sociable instinct in con-
nection with the most anti-social criminals.
And it is only by oblivion of the elementary and
least contestable data of criminal bio-psychology that
the exclusion of all life-punishments can be main-
tained, on the ground that this perpetuity" is contrary
to the reformative principle of punishment, to the
principle that punishment ought to aim not only at
PRACTICAL REFORMS. 247
afflicting the prisoner, but also at arousing in him, if
possible, the moral sense, or at strengthening him,
and opening up to him a path by which he can hope
to be readmitted into society, amended and rehabili-
tated. Perpetuity of punishment excludes this possi-
bility."
The framers of the Dutch penal code replied to
these observations of Professor Pols, first in the name
of common sense, that " punishment is not inflicted
for the benefit of the prisoner, but for that of society,"
and secondly, with something of irony, that " even
for the sake of the abolition of capital punishment,
and to prevent a reaction in favour of this punish-
ment, we must uphold the right of shutting up for
ever the few malefactors whose release would be
dangerous."
It is entirely futile to consider the amendment of
criminals as opposed to imprisonment for life, when
it is known that born criminals, authors of the most
serious crimes, for whom such punishment is reserved,
are precisely those whose amendment is impossible,
and that the moral sense attributed to them is only a
psychological fallacy of the classical psychologist, who
attributes to the conscience of the criminal that which
he feels in his own honest and normal conscience.
But it is easy enough to see that this opposition to
perpetual detention, though it has remained without
effect, as being too doctrinaire and sentimental, is
only a symptom of the historical tendency of the
classical schools, entirely in favour of the criminal,
and always tending to the relaxation of punishments.
The interests of society are too much disregarded
248 CRIMINAL SOCIOLOGY,
when it is sought to pass from the abolition of capital
punishment to that of imprisonment for life. If the
tendency is not checked, we may expect to see some
classical expert demanding the abolition of all
punishment for these unfortunate criminals, with
their delicate moral sensibilities !
The question, therefore, is between transportation
or indefinite seclusion.
Much has been written for and against transporta-
tion, and there was a lively discussion of the problem
in Italy, some twenty years ago, between M. Beltrani
Scalia, a former director-general of prisons, and the
advocates of this form of elimination of criminals.
Without going into the details of the controversy, it
is evident that the experience of countries like Eng-
land, which for a long time transported its criminals
at a cost of hundreds of millions, and then abandoned
the practice, is in itself a noteworthy example.
Yet it is only an objection, so far as it goes, against
transportation as formerly practised, that is to say,
with enormous prisons built in distant lands. M.
Beltrani Scalia justly said that we might as well
build them at home, for they will cost less and be
more serviceable. The example of France in its
practical application of this policy is not encouraging.
However, there is in transportation, as in the death
penalty, an unquestionable element of reason. For
when it is perpetual, with very faint chances of return,
it is the best mode of ridding society of its most
injurious factors, without our being compelled to
keep them in those compulsory human hives which
are known as cellular prisons.
PRACTICAL REFORMS. 249
But again, there is the question of simple trans-
portation, first put into practice by England, which
consists of planting convicts on an island or desert
continent, with the opportunity of living by labour, or
else of letting them loose in a savage country, where
the convicts, who in civilised countries are themselves
half savage, would represent a partial civilisation, and,
from being highwaymen and murderers, might become
military leaders in countries where, at any rate, the
revival of their criminal tendencies would meet with
an immediate and energetic resistance, in place of the
slow machinery of our criminal trials.
For Italy, however, the question presents itself in a
special form ; for there a sort of internal deportation,
in the lands which are not tilled on account of the
malaria, would be far more serviceable. If the dis-
persion of this malaria demands a human hecatomb,
it would evidently be better to sacrifice criminals than
honest husbandmen. Transportation across the sea
was very difficult for Italy a few years ago, especially
in view of the lack of colonies ; for then there was
always the obstacle of which Franklin spoke in
reference to transpojcted English convicts, in his
well-known retort : " What would you say if we
were to transport our rattlesnakes to England ? "
But since Italy has had her colony of Erythrea the
idea of transportation has been taken up again. In
May, 1890, I brought forward a resolution in Parlia-
ment in favour of an experimental penal colony in
our African dependencies. The proposal found many
supporters, in spite of the opposition of the keeper of
the seals, who forgot that he had written in his report
250 CRIMINAL SOCIOLOGY.
on the draft penal code that prisoners might also be
detained in the colonies. Soon afterwards the pro-
posal was renewed by Deputy De Zerbi, and ac-
cepted by M. Beltrani Scalia, director-general of
prisons.
In a similar manner M. Prins declares himself in
favour of transportation for Belgium, since the consti-
tution of the Congo State.
But it is my matured opinion that transportation
ought not to be an end in itself. The penal colony
for adults ought to be a pioneer of the free agri-
cultural colony. The problem of a penal colony in
our African possessions cannot, therefore, be solved
in advance of two other questions.
Before all, we must see whether these possessions
offer suitable districts for agricultural colonisation.
And secondly, we must consider whether convicts
would not cost less to transport into districts nearer
home which need to be cleared, a plan which would
also prevent their going over to the enemy, becoming
leaders or guides of the barbarous tribes which are at
war with us.
In any case, whether we decide on transportation
to the interior or beyond the seas, for born and
habitual criminals, there is still the question as to the
form of seclusion.
In this connection the idea has been suggested ot
•* establishments for incorrigibles," or hardened crimi-
nals, wherein should be confined for life, or (the same
thing in this case) for an indefinite period, born crimi-
nals who have committed serious crimes, habitual
criminals, and confirmed recidivists.
PRACTICAL REFORMS. 2$ I
The congenital character and hereditary transmis-
sion of criminal tendencies in these individuals fully
justify the words of Quetelet, that " moral diseases
are like physical diseases : they are contagious, or
epidemic, or hereditary. Vice is transmitted in some
families in the same way as scrofula or consumption.
The greater number of crimes come from a compara-
tively few families, which need a special supervision,
an isolation like that which we impose on sick persons
suspected of carrying the germs of infection." So
Aristotle speaks of a man who, being accused of
beating his father, answered : " My father beat my
grandfather, who used to beat his father cruelly ; and
you see my son — before he is grown up he will fly
into passions and beat me." And Plutarch added to
this : " The sons of vicious and corrupt men reproduce
the very nature of their parents."
This is the explanation of Plato's idea, who, " ad-
mitting the principle that children ought not to suffer
for the crimes of their parents, yet, putting the case
of a father, a grandfather, and a great-grandfather
who had been condemned to death, proposed that
their descendants should be banished, as belonging to
an incorrigible family." Carrara called this a mis-
taken idea, but it seems to us to be substantially just.
It may be remembered that when De Metz in 1839
founded his agricultural penal colony at Metray, once
celebrated but now in decay (for the whole success of
these foundations depends on the exceptional psycho-
logical qualities of their governors), out of 4,454
children, 871, or 20 per cent, were the children of
convicts. We quite agree with Crofton's proposal to
252 CRIMINAL SOCIOLOGY,
place the children of convicts in industrial schools of
houses of correction.
A special establishment for the perpetual or indefi-
nite seclusion of incorrigible criminals has been pro-
posed or approved in Italy by Lombroso, Curcio,
Barini, Doria, Tamassia, Garofalo, Carelli ; in France
by Despine, Labatiste, Tissot, Leveill6 ; in Russia
by Minzloff; in England by May; in Germany by
Kraepelin and Lilienthal ; in Austria by Wahlberg ;
in Switzerland by Guillaume ; in America by Wines
and Wayland ; in Holland by Van Hamel ; in
Portugal by Lucas ; &c.
But I believe that, in order to establish the fact of
incorrigibility, the number of relapses should vary in
regard to different criminals and crimes. Thus, for
instance, in the case of murders, especially by born
criminals, the first crime should lead to an order for
imprisonment for life. In the case of less serious
crimes, such as rape, theft, wounding, swindling, &c.,
from two to four relapses should be necessary before
the habitual criminal is sentenced to such imprison-
ment.
These ideas are approximately carried out, especi-
ally in the countries which, having made no great
advance in the criminal sciences, meet with less of
pedantic opposition to practical reforms.
Thus we find that France, after the proposals of
Michaux, Petit, and Migneret, and especially after
the advocacy of M. Reinach, followed by several
publications of a like kind, agreed to the law of
1885 on the treatment of recidivism.
Messrs. Murray Brown and Baker spoke at the
PRACTICAL REFORMS. 253
Prison Congress at Stockholm and at the Soci^t6
G^n^rale des Prisons at Paris, of the system of
cumulative and progressive sentences adopted,
though not universally, in England with respect to
hardened criminals. The term of imprisonment is
increased, almost regularly, on each new relapse.
This is the system which had already been suggested
by Field and Walton Pearson at the Social Science
Congress in October, 1871, and subsequently by Cox
and Call, who was head of the police at Glasgow, at
the Congress of 1874, and which, as Mr. Movatt
pointed out, was adopted in the Indian penal code,
and had been established in Japan by a decree
fixing perpetual imprisonment after the fourth
relapse.
The delegate from Canada at the Prison Congress
at Stockholm testified that short terms of imprison-
ment increased the number of offences. " After a
first sentence many offenders in this class become
professional criminals. Professional thieves, who are
habitual offenders, ought, with few exceptions, to be
sentenced to imprisonment for life, or for a term
equivalent to the probable remainder of their life."
The draft Russian code, in 1883, provides that, "If
it is found that the accused is guilty of several
offences, and that he has committed them through
habitual criminality, or as a profession, the court,
when deciding upon the punishment in relation to
the different crimes, may increase it," &c. And the
Italian penal code, though with much timidity, has
decreed a special increase of punishment for
prisoners " who have relapsed several times."
18
254 CRIMINAL SOCIOLOGY.
Quite recently, Senator B^renger introduced a
measure in France " on the progressive increase of
punishment in cases of relapse," which became law
on March 26, 1891, under the title of "the modifica-
tion and increase of punishments."
It is therefore very probable that even the classical
criminalists will end by accepting the indefinite
seclusion of hardened criminals, as they have already
come to accept criminal lunatic asylums, though both
ideas are opposed to the classical theories.
This is so true that at the Prison Congress at St.
Petersburg in 1889 the question was first propounded
" whether it can be admitted that certain criminals
should be regarded as incorrigible, and, if so, what
means could be employed to protect society against
this class of convicts." And speaking as a delegate
from the Law Society of St. Petersburg, M. Spaso-
vitch acknowledged that " this question bore the
stamp of its origin on its face. Of all the questions
in the programme, it seemed to be the only one
directly inspired by the principles of the new positive
school of criminal anthropology, whose theories,
propagated beyond the land of their birth in Italy,
tended to a radical reform in science as well as in
legislation, in the penal law as well as in procedure,
in ideas of crime as well as in the modes of repres-
sion."
The Congress, in spite of some expressions of
reserve, as when Madame Arenal platonically ob-
served that "an uncorrected criminal is not synony-
mous with an incorrigible criminal," adopted the
following resolution : — " Without admitting that from
PRACTICAL REFORMS.' 2$$
the penal and penitentiary point of view there are
any absolutely incorrigible criminals " — which is pure
pedantry — " yet since experience shows that there
are in fact individuals who resist the combined action
of punishment and imprisonment " — a notable admis-
sion ! — " and who habitually and almost profession-
ally renew their violation of the laws of society, this
section of the Congress is unanimously of opinion
that it is necessary to adopt special measures against
such individuals,"
Similarly the International Union of Penal Law,
in its session at Berne (August, 1890), expressed the
opinions of the majority in the following terms: —
" There are malefactors for whom, in view of their
physical and moral condition, the constant applica-
tion of ordinary punishments is inadequate. In this
class are specially included the hardened recidivists,
who ought to be considered as degenerate criminals,
or criminals by profession. Malefactors ought to be
subjected, according to the degree of their degenera-
tion, or of the danger which they threaten, to special
measures, framed with the purpose of preventing
them from inflicting harm, and of amending them if
possible." And in the session at Christiania (August,
1 891), after the remarkable contribution of Van
Hamel, the Union, after rejecting the proposition of
Felisch, which spoke of " the uncorrected " in place
of the " incorrigible," unanimously approved the
conclusions of Van Hamel : — " With a view to the
more complete study of the character and injurious
influence of habitual offenders, notably of such as
are incorrigible (a study which is absolutely indis-
256 CRIMINAL SOCIOLOGY.
pensable for legislation), the Union instructs its
officers to urge upon the various Governments the
great importance of statistics of recidivism which
shall be detailed, precise, uniform, and adapted
for comparative study. For incorrigible habitual
offenders it is absolutely necessary that the trial on
the last charge shall not definitely determine the
treatment of the offender, but that the decision shall
be carried on to a further inquiry, which shall have
regard to the offender personally, to his past, and to
his conduct during a fixed period of observation.
It is now necessary to inquire what form the per-
petual or indefinite segregation of the criminal should
assume.
Two great innovations in regard to prisons, as
M. Tarde observes, have been made or developed
within the past century, which are not yet adopted
in every country : penal colonies, whereof transporta-
tion is only a factor, and the prison cell. The cell
has assumed a leading position since it was brought
over from America to Europe, where, however, the
cellular prisons of St. Michael at Rome, and of Gand,
had preceded it
The cellular system, a product of the reaction
against the enormous physical and moral putrefaction
of the inmates of common prisons and labour estab-
lishments, may have had, and doubtless still has
many advocates, amongst other reasons for the spirit
of pietism and religious penitence which always goes
with it ; but it is open to strong criticism.
There has already been, amongst the same prison
PRACTICAL REFORMS. 257
experts, a certain retrogressive movement in regard
to isolation. Absolute and continued isolation,
indeed, both by day and by night ("solitary con-
finement ") was at first recommended, even to the
introduction, grotesque in spite of good intentions,
of hoods and masks for the prisoners, a mediaeval
reminiscence almost parallel with the Brothers of
Pity in some Italian towns, for help to the wounded.
Presently it was seen that this sort of thing certainly
could not assist in the amendment of the guilty, and
then isolation was relaxed (still making it applicable
both by day and by night) with visits to prisoners by
the chaplain, governors, and representatives of vigi-
lance and prisoners' aid societies. This is called
" separate confinement." After this it was recog-
nised that the real need for isolation was at night,
and then the Auburn system was arrived at: isolation
in cells by night, with daily labour in common, with
an obligation (which cannot be enforced) ot silence.
And finally, seeing that in spite of the threefold
panacea of every prison system (isolation, work, and
instruction, especially religious instruction) relapses
still increased, it was understood that it might not
be very useful to subject a man for months or years
to the monastic life of Trappist brothers, in these
monstrous human hives (which Bentham brought to
the notice of the French Constituent Assembly
under the name of "panopticons"), and to discharge
him from prison at the end of his term, and plunge
him into all the temptations of an atmosphere to
which his lungs had become disaccustomed.
Then the " progressive system " was introduced,
258 CRIMINAL SOCIOLOGY.
first in England, where it was devised by Macono-
chie, next in Ireland, which has given it a name,
alternated with that of Sir W. Crofton. This is
the most symmetrically perfect machinery, though
reminding one somewhat of a company of marion-
ettes. It confirms what was said by Haeckel, that
the actual is a summary of the moods of aspiration,
for it precisely sums up the systems which preceded
it, each of which constitutes a phase of the pro-
gressive system. There is first of all a period of
brotherly charity — absolute isolation for the prisoner
to fall back upon his conscience, or to listen to the
voice of remorse, or to receive an impression of
devotion and fear. After this comes the Auburn Ian
phase, of isolation by night and labour (when labour
is accorded) by day, with the constraint of silence.
Then an intermediary period in the agricultural
colony or labour-gang outside the prison, like a
period of convalescence, to accustom the lungs to
the keen air of liberty. This is the phase added by
Sir W. Crofton to the English system. Lastly comes
the period of conditional release (on ticket of leave),
whereby the last portion of the punishment is re-
mitted, and will count as expiated if during the time
of liberation, and for a succeeding period, the convict
does not commit another crime.
The progressive or retrogressive passage from one
phase to another is made by a sort of automatic
regulator, depending on the number of marks gained
or lost by the prisoner through his good or bad
behaviour, to which we know the moral or psycho-
logical value to be attached — a value purely negative.
PRACTICAL REFORMS. 259
This progressive, gradual, or Irfsh system has
obtained a supremacy in Europe, so that even
Belgium, the classic land of the cellular system,
reconsidered the ideas which it had based on daily
experience, and was the first continental country to
introduce conditional sentences (in 1888), which are
the fruit of short sentences and cellular punishments.
I do not deny that this progressive system is
better than the others, though we must not forget
that the almost miraculous effects of amendment
and decrease of recidivism (which indeed are claimed
for every new system, only to be disproved later on)
were due in Ireland to the wholesale emigration of
those conditionally released to North America — an
emigration amounting to 46 per cent, of the
prisoners released. Nor must we forget that this
system, which requires a trained staff of officers, is
less difficult to work in countries where, as in Ireland,
there are only a few hundred prisoners ; but it would
be much more difficult in Italy or France, where the
prisoners are numbered by tens of thousands. In
these countries, accordingly, the system will not be
practical unless the principle of classifying prisoners
in biological and psychological categories is con-
joined with it ; for without this we shall not get rid
of the impersonal system which is the vice of our
present penal law, and under which, even in our
prison administration, we treat the prisoner as a
mere symbol, to which we can apply the three con-
ventional rules of the cell, hard labour, and instruc-
tion.
But I am strongly opposed to, or accept simply as
26o CRIMINAL SOCIOLOGY.
accessory (even for the seclusion of prisoners before
trial, after the preliminary examination), cellular
isolation by itself, which has reached the height of
absurdity and inhumanity in cases of imprisonment
for life.
As Mancini said in 1876, discussing the draft of
the Italian penal code, " the punishment of hard
labour for life, which is substituted in the draft for the
capital sentence, differs substantially in its severity of
privation and misery from all other modes of im-
prisonment. It must be undergone in one or two
special prisons to be erected within the country. It
would be the saddest and most terrible thing which
the imagination of man could conceive. These tombs
of the living, whom society has rejected for ever,
unlike all other prisons, will condemn their inmates
to continuous solitary immurement in cells, and to a
life which may be worse than death itself . . . This
most wretched condition, which the free man cannot
realise without horror, is to last ten years ; and it is
not to be in the power of man to bring it to an end
sooner, if the prisoner, broken down by physical weak-
ness, or threatened by loss of reason, cannot endure it
any longer,"
After this description, I am not sorry that I de-
nounced the cellular system as one of the madnesses
of the nineteenth century.
This useless, stupid, inhuman, costly " tomb of the
living" must be repudiated, even when reduced to its
lowest terms by the new Italian code, wherein Parlia-
ment, accepting part of my amendment, fixes the term
of absolute seclusion at seven years.
PRACTICAL REFORMS. 261
It will be seen by this description of cellular im-
prisonment that the classical criminal and prison
experts have logically arrived at the conclusion that
perpetual punishment should be abolished ; and this
renders rec'divism possible even in murder. But it is
clear that what we ought to abolish is not perpetual
separation, but only the stupidly harsh form of isola-
tion in cells — and this not only in life sentences, but
in all sentences.
Cellular imprisonment is inhuman, because it blots
out or weakens, in the cases of the least degenerate
criminals, that social sense which was already feeble
in them, and also because it inevitably leads to mad-
ness or consumption (by onanism, insufficient move-
ment, air, &c.). Hence it drives the prison authorities,
in order to avoid these disastrous consequences, to the
injustice of building cells for murderers which are
decidedly comfortable, and consequently a mockery
of the honest wretchedness of the cottages and garrets
of the poor. The treatment of mental diseases recog-
nises a special form of insanity under the name of
prison madness.
Cellular imprisonment, in temporary or indefinite
sentences, can do nothing for the amendment of the
guilty, especially because, when we do not amend the
social environment, it is useless to lavish care on our
prisoners if, as soon as they quit prison, they must
return to the same conditions which led them into
crime. No adequate social prevention can in any way
be provided by the more or less arcadian devices of
the prisoners' aid societies. The chief mistake of the
prison experts has been to concentrate their attention
262 CRIMINAL SOCIOLOGY,
exclusively on the cell and in the cell, forgetting the
external factors of crime ; so that, by a familiar
psychological process, the cell has become for prison
experts what money is to the avaricious : it has ceased
to be a means, and has become an end in itself.
Again, the cellular system is ineffectual because the
very isolation which was its original object is incap-
able of realisation. Prisoners find a thousand means
of carrying on communication with each other, during
their walks, or by writing on the leaves of books lent to
them to read, or by knocking on their walls according
to a conventional alphabet, or by writing in the sand,
or by using the drains as telephonic receivers, as was
done in the cellular prisons of Mazas, Milan, &c.
Plain proofs of this may be found in Lombroso's
*' Les Palimpsestes des Prisons." " The public, and
even well-informed persons, honestly believe that the
cellular prison is a dumb and paralytic thing, without
tongue or hands, simply because the law has ordered
silence and inactivity. But as no decree, however
vigorous, can counteract the nature of things, so this
organism speaks, moves, occasionally wounds or slays,
in spite of all the decrees. Only, as always happens
when a necessity of humanity is opposed by a law, it
acts by less known, underground and hidden means."
Moreover, the cellular system is unequal in its ap-
plication, for difference of race has much to say to it,
and in fact it is a clumsy machinery of the northern
races, repugnant to those of the south, more depen-
dent on the open air and light. Apart from that.
Isolation has very different effects amongst people of
the same nation, accprding to the different vocations
PRACTICAL REFORMS, 263
of the prisoners, especially of occasional offenders. In
this connection the testimony of Faucher, Ferrus, and
Tarde is thoroughly just, that in prison administration
we ought to observe a distinction between dwellers in
town and country.^
Again, the cellular system is too costly to be adopted
as the only form of imprisonment — which, however, is
enacted in the Italian penal code, the French law of
1875, and elsewhere.
And it is just by reason of the enormous expen-
diture on vast prisons that the grievous and mis-
chievous contrast arises between the comforts
provided for murderers and men guilty of arson in
their cells and the privations to which the honest
poor are exposed in hospitals, poorhouses, town
garrets, country hovels, and barracks. One of the
most significant results which I noticed at the exhi-
bition of various plans of cells in connection with the
Prison Congress at Rome in 1885 was that it demon-
strated to the general public how the cellular system
treats prisoners (whether before trial or after sentence)
better than the poor, who continue to be honest in
spite of their wretchedness.^
' Yet the question whether the cellular system should be modified in
accordance with the nationality, social condition, and sex of criminals,
which has not been brought forward since the Prison Congress at Stock-
holm, was there decided by the following resolution : — '* The cellular
system, where it is in operation, may be applied without distinction of
lace, social condition (as regards townsmen or rural population), or
sex, provided that the authorities have regard to these special conditions
in matters of detail. Exception may be made in respect of the young,
and if cellular discipline is applied to them also, it should be in such a
way as not to prejudice their physical and moral development."
("Proceedings," 1878, pp. 303, 617.)
' Even prison experts have been concerned by the vast expense of the
cellular system, and the following question was brought forward at the
Z6^ CRIMINAL SOCIOLOGY.
In Germany, as well as in France and Italy, legis-
lation has ordained, by codes and special laws, the
cellular system for all punishment by imprisonment ;
but fortunately the system has not yet been adopted,
thanks to its enormous cost. So that we have the
further absurdity of codes based on prison systems
which have no actual existence. And since criminals
have their part in the law, not as it is written but as
it is carried out, the result is naturally disastrous.
Thus the cellular system bears hard upon the
honest classes, both by its enormous cost, under the
form of taxation, and by competition with free and
honest labour. The competition is moral in the first
place, for the criminal is always assured of daily work,
lodgings, and food, whilst the honest workman is
assured of neither. Even the economic competition,
though not extensive when we take the totals of free
workmen and prisoners, is still very keen in particular
places and for particular industries, whilst prison
labour never indemnifies the State for its expenditure;
for clearly with cellular isolation it is impossible to
organise important and profitable industry. It is the
small industries, such as shocmaking and carpentry,
which crush the same free industries all round the
prison, for they cannot stand against the artificial
competition created by the nominal wages of the
prison hands. Though for moral and financial
Conjjress iat Rome : — " What modifications would be possible, in ac-
cordance with recent experience, in the construction of cellular jirisons,
so as to render it more simple and less costly, without detriment to the
necessary conditions of a sound and intelligent application of the
system?" Detailed recommendations were agreed to on the motion of
M. Herbette ; but the system is unchanged, with requirements which
can be only very slightly reduced.
PRACTICAL REFORMS. 2(S$
reasons the convicts must work, it is evident that on
these grounds we cannot accept the cellular system as
a pattern of prison organisation.
It is quite sufficient, in prisons for the segregation
of criminals, to provide for isolation by night, which
requires buildings far more simple and less costly than
those of the cellular prisons.
Work in the open air is the only useful basis of
organisation for convict prisons.
Air, light, movement, field labour, especially in
southern counties and for the majority of prisoners,
who are rural — these are the only physical and moral
disinfectants possible for prisoners not entirely de-
generate, or likely to prevent at least the absolute
brutalisation of the incorrigible, by giving them
healthy and more remunerative work.
The penal agricultural colony, in lands which need
clearing, is the best for adults, passing from the least
to the most healthy according to the categories of
criminals — born, habitual, occasional — and according
to the gravity of the crimes committed. To this may
be added, for convicts less capable of restoration
to social life, labour in mines, especially when the
mines are State property. What I have said of
malaria I say of fire-damp : it is much better that these
should kill off criminals, than honest workmen.
The penal agricultural colony in lands already
cultivated is best for children and young people.
This is the ideal and the typical form of segregation
for criminals, against whom it would not be sufficient
to exact strict reparation of damage, on the principles
already set forth.
266 CRIMINAL SOCIOLOGY,
Wherever there is a crowding of humanity, there is
human fermentation and putrefaction. Only labour
in the open air will secure physical and moral health.
And if agricultural work would be less fitted for
criminals from the towns, there is no reason why an
agricultural colony should not make itself as far as
possible self-sufficing by means of workshops where
prisoners could ply the trade to which they were ac-
customed when at liberty. For town convicts without
a trade, such as vagabonds, beggars, and the like, on
the ground of their muscular incapacity for hard and
regular work, an agricultural colony is still the most
fit, for it provides light and varied occupations, as the
agricultural colonies of Holland, Belgium, and Austria
bear witness.
The same evolution will take place in regard to the
segregation of criminals as in regard to the seclusion
of the insane ; first, hospitals and prisons, with a
terrible communion of corruption in both cases ; then
barrack life, in asylums or penitentiaries, vast and
isolated ; lastly, for the insane, a system of so-called
village asylums, and even a free colony for harmless
idiots who can be put to agricultural work and minor
trades, as at Gheel in Belgium. Similarly for crimi-
nals, the sanitary "elbow room" of agricultural colonies
will be substituted for the infectious barrack-life of the
great prisons.
As for habitual criminals, their anthropological
characteristics remind us that we must distinguish
between the two crises of their criminal activity, and,
as a consequence, between the methods of defence
PRACTICAL REFORMS. 267
against them. That is to say, we must distinguish
between the initial moment at which they commit
their first crime and the subsequent period in which
they become habitual offenders, recidivists, and even
incorrigible.
Thus it is clear that at the initial moment of their
criminal career they ought to be subjected to the
measures which I am about to indicate for occasional
criminals ; whereas, when from occasional they have
become, partly by their imprisonment, habitual
offenders, they must be subjected to the measures
already indicated for born criminals. The latter are
incorrigible through congenital tendency to de-
generate, and the former are incorrigible through
acquired tendency ; but they end in the same degree
of anti-sociality and brutalisation. There is, how-
ever, this difference, that habitual offenders nearly
always commit less serious crimes, such as theft,
swindling, forgery, indecent assault, whilst the born
criminals, though they may be petty thieves, or not
very formidable swindlers, are more frequently
murderers, footpads, guilty of arson, or the like.
Thus the discipline of their segregation must vary
accordingly.
For occasional criminals, social defence must have
a character of prevention rather than of repression,
so as to save them from being driven, by a mistaken
prison organisation, to become recidivists, and there-
fore habitual and incorrigible criminals.
It is especially important in this category to dis-
criminate between the young and the adults, for
268 CRIMINAL SOCIOLOGY.
with the former, far more than with the latter, the
preventive methods may have a sensible effect in
diminishing crime. But we must take care, in place
of the pedantic graduation of responsibility which
satisfies the penal codes, to substitute a physiological
and psychical treatment of children and young
people, who are actual criminals or framing for crime.
/ Beginning with the physical and moral treatment
i^oi foundling children as one of the most effectual
penal substitutes, and advancing to reformatory con-
straint and penal sentences upon the young, there
is an entire system crying for radical reform, from
which imprisonment for young persons should always
be excluded. We must therefore abolish the so-
called houses of correction ; for, taking no account
of the absurd and dangerous confusion created by
the three classes of children committed for paternal
correction, for begging and vagrancy, and for of-
fences, no good can ever come of it, for the herding
and crowding together are nowhere more produc-
tive of fermentation and putrefaction than amongst
the young.
There is nothing for them but separate boarding-
out with families of honest country folk, or else
agricultural colonies with a discipline different from
that of the colonies for adult criminals, but still
based on the rule of isolation by night, work in the
open air, and as little crowding as possible.
For adult occasional criminals it is unnecessary to
insist any further on the absurdity and danger of
short terms of imprisonment, with or without isola-
tion in cells, which now constitute the almost
PRACTICAL REFORMS. 26g
exclusive mode of repression. A few days in prison,
mostly in association with habitual criminals, cannot
exercise any deterrent influence, especially in the
grotesque minimum of one day, or three days, as
provided by the Dutch, Italian, and other codes.
On the contrary, they are attended by disastrous
effects, by destroying the serious character of justice,
relieving prisoners of all fear of punishment, and
consequently driving them . to relapse, under the
influence of the disgrace already suffered, and of
the corrupting and compromising association with
habitual criminals in prison.
The results of these short terms, indeed, which
impose about the same restriction of liberty as an
attack of indigestion, or a heavy fall of snow, are so
manifest that the objection to them is now almost
unanimous, though they still form the basis of the
most recent penal codes.
As to the substitution of other repressive methods
in the many cases of sentence for light offences,
theorists and legislators have proposed domiciliary
arrest, sureties, judicial warnings, compulsory work
without imprisonment, conditional suspension of a
sentence or a punishment, qualified banishment.
For the moment there is a marked preference for
conditional sentences.
In my opinion, however, none of these substitutes
or short terms of imprisonment can be applied as
effectively or as generally as is necessary for the large
class of occasional offenders.
Domiciliary arrests, indeed, which the Italian penal
code applies only to women and minors for a first
19
270 CRIMINAL SOCIOLOGY,
contravention of the law, with detention in the house,
cannot be made effective. They would be useless
for those already obliged to remain at home by their
daily occupations, and for the rich, who could have
any form of distraction in their own houses ; and
they would be injurious to those who have to earn
a living for themselves and their families in work-
rooms, shops, offices, &c. Moreover, this domiciliary
detention would be very difficult in the great towns,
where it would probably require a sentinel for every
condemned person.
Bail for good behaviour is too unequal in the case
of the poor and the rich, and therefore too rarely
applicable to be any more than an exceptional and
accessory measure, taken in conjunction with the
payment of damages ; and this even when it is given
by sureties.
Judicial warning, with or without security, which
the new Italian penal code has sought to revive, in
spite of many years' experience under the older
codes, cannot be seriously treated. Either the
prisoner is an occasional offender, or an offender
through passion, having a sense of honour, in which
case public opinion is itself a sufficient lesson for
him, without the need of a little moral lecture from
the judge ; or else he has no such moral sensibility,
and then the warning is a mere useless ceremony,
without effect either on the criminal or on the public.
So tru<i is this that judicial warning (a different thing
from police warning, which is another so-called pre-
ventive measure, both ineffectual and injurious) is
rarely applied by magistrates.
PRACTICAL REFORMS. 27I
Compulsory work without imprisonment may be
admitted, not as a main punishment, but as a mode
of enforcing strict reparation of damage, which I still
believe to be the only suitable measure for occasional
offenders, when the offence is slight.
The same must be said for qualified banishment
(temporary removal from the place where the crime
was committed), which may be added as a preventive
measure, and as a satisfaction for the injured party,
in the same cases where the payment of damages is
the principal retribution.
There remains the conditional sentence. A judge
may decide, in the case of first offenders who appear
to him to call for such treatment, that the sentence,
or the execution of the sentence, shall be suspended
for a given period, after which, if the offender has
been of good behaviour, and has not committed
another offence, the sentence is effaced and the
condemnation is regarded as non-existent ; whilst in
the other case the sentence takes effect, and the
punishment is added to that of the new crime.
This conditional suspension, however, assumes two
very different forms.
At Boston, in the State of Massachusetts, from the
year 1870 in the case of minors, and from 1878 in
the case of adults, judgment is suspended without
regard even to the gravity of the crime or to the
antecedents of the criminal ; and this custom has
applied to the entire State from the year 1880. All
that the judge does is to fix the period of probation.
There is a probation officer whose business it is to
keep his eye on the persons affected, and who has
272 CRIMINAL SOCIOLOGY.
extensive powers, including that of bringing them
up for sentence even for disorderly conduct, without
waiting for an actual relapse. This system has also been
introduced into New Zealand and Australia (1886).
In England, after the advocacy of the probation
system by the Howard Association, an Act was
passed in 1887 " to permit the conditional Release of
first Offenders in certain cases," This law combines
probation with sureties for good conduct. Judgment
is given, but sentence is not pronounced. The sus-
pension is not granted to any one who has previously
committed an offence, or whose first offence would be
liable to a punishment exceeding two years' imprison-
ment. There is no probation officer, for supervision
is replaced by personal or other sureties for good
behaviour.
On the continent of Europe another form has been
adopted. There is no supervision by a special officer,
and no surety for good behaviour ; judgment is
delivered and sentence pronounced ; and the suspen-
sion is not forfeited by disorderly conduct, but only
by an actual relapse.
This system, so far as the purpose was not effected
by various conditions as to the duration of punish-
ment, which left room for conditional sentences, as
to the interval for taking cognisance of relapse, and
other details, was proposed in France (1884) by
Senator Berenger ; but Belgium was the first country
to adopt it in the law of 1888 " on conditional release
and conditional sentences;" and France followed in
1891, with the law " on the modification and increase
of punishments."
PRACTICAL REFORMS, 273
Before that time, at the Prison Congresses of
London (1872) and Rome (1885), there had been
some discussion, without resolutions, on the advisa-
bility of substituting for punishment with hard labour
either simple detention without labour or compulsory-
labour without imprisonment, or removal from the
place where the offence was committed, or judicial
admonition.
But the most noteworthy advocacy of conditional
sentences, after the action taken by the Howard
Association in 1881, came from the International
Union of Penal Legislation, which at its Conference
at Berne in 1889 adopted a resolution in its favour,
whilst insisting, at the suggestion of M. Garofalo,
" on the necessity of deciding its limitation according
to local conditions, and to the public opinion and
moral characteristics of various nations."
The Prison Congress of St. Petersburg discussed
the substitution of judicial admonition or conditional
sentences for short terms of imprisonment ; but no
resolution could be arrived at on this occasion, and
the matter was postponed to the next international
Prison Congress (Paris, 1895).
In Austria and Germany, again, several Bills have
been introduced, dealing with conditional sentences.
There are statistics for Belgium on the operation
of this system. The law of 1888 requires the keeper
of the seals to report annually to Parliament ; and
that authority drew up two reports, dated May 14,
1890, and July 7, 1891.
From the day when the law came into operation
up to December 31, 1889, out of 61,787 sentences in
274 CRIMINAL SOCIOLOGY.
the Correctional Tribunals, 8,696 were conditional ;
and there were 192 relapses. Out of 222,492 sen-
tences in the Police Courts, 4,499 were conditional,
and there were 45 relapses.
These 13,195 conditional sentences included 8,485
for crimes and offences under the penal code ; 2,286
for breaches of police regulations ; 447 for breaches
of communal and provincial regulations ; and 1,977
for contraventions of special laws.
The crimes and offences for which, these sentences
have been most frequently pronounced are as follows:—
Malicious Wounding
Thefts, &c
Resistance to and attacks on Authorities
Destruction of Inclosiires and Property ..
Swindling and Breach of Trust
Slander and Defamation
Immorality
Offences below 100 were : Abusive language, 99 ;
Indecent assaults, 59; Threats, 58; Forgery, 49;
Adultery, 48 ; Adulteration of food, 44 ; Unlawful
wounding, 45 ; Unlawful possession, 31 ; Unlawful
carrying and sale of arms, 30 ; Bankruptcy, 26 ;
Accidental homicide, 20.
In the year 1890, out of 41,330 sentences in the
Correctional Tribunals, whereof 36,660 were not over
six months' imprisonment, 7,932 were conditional,
and there were 223 relapses. Out of 121,461 in the
Police Courts, 6,377 were conditional, and there were
49 relapses.
The proportion for various offences was approxi-
mately the same as in the previous year.
These figures, it is true, do not tell us much about
Correctional.
Folic
3.339
.. 491
1,803
206
961
.. 67
211
... 56
125
5
"3
.. 79
112
10
PRACTICAL REFORMS. 275
the effects of conditional sentences in Belgium, as we
might expect from the brevity of the experiment ;
so that the question still remains in the theoretical
phase.
The statistics of the Massachusetts probation
system are not much more instructive.
According to the decennial report (1879-88) of Mr.
Savage, probation officer at Boston, imprisonment
was remitted in the county of Suffolk (including
Boston) to 322 persons in 1879 and to 880 in 1888 ;
whilst the number officially recorded for the following
year was 994. In the course of ten years the proba-
tion officer inquired into the cases of 27,052 persons
liable to supervision. Of these, 7,251 were put on
probation, and 580 were deprived of the benefit of
the law.
The grounds on which the probation system was
applied in Massachusetts were strikingly different
from the circumstances under which conditional
sentences were recorded in Belgium. Thus in
Boston there were put on probation, between 1879
and 1888, 3,161 persons charged with drunkenness
for the first time, 222 charged with habitual drunken-
ness, 211 with drunkenness for the third time, 958
with theft, 764 with solicitation, 470 with inflicting
bodily harm, 274 with disorderly conduct and idle-
ness, 240 with violation of domicile, especially with
intrusion in business premises.
Thus, apart from the difference of penal legisla-
tion and social life in the two countries, the Boston
system is applied mainly to drunkards, who are not
true criminals by the mere fact of intoxication.
276 CRIMINAL SOCIOLOGY,
As for the statistics of ascertained relapse, which in
Boston reached 64 out of 1,125 (^ per cent.) in 1889,
I think they should be received with caution. In the
case of every new penal or penitentiary system or
measure, we never fail to receive more or less wonder-
ful figures on the results obtained ; but the common
fate of all these splendid results has always been that
they dwindle down, even if they do not turn into a
negative quantity, so as to indicate the necessity of
other moire practical and serviceable measures. The
reason is, and will continue to be the same, namely,
that legislators, judges, and prison warders have no
adequate knowledge of criminals, and their activity
is anything but harmonious. This accounts for the
superficial character, if nothing more, of the measures
which are taken, and which apply far more to the
crime than to the criminal, without so much as
touching the true and deep-seated roots of crime.
Hence also the inevitable disillusion, almost before
the new device is a month old.
I by no means admit the two principal objections
of MM. Kirchenheim and Wach, that the conditional
sentence is repugnant to the principle of absolute
justice, according to which every offence should be
visited by a corresponding punishment, and that short
terms of imprisonment, if they have not always pro-
duced a good result, ought not to be abolished, but
only applied in a more suitable and efficacious
manner.
The first objection will not weigh much with those
who are guided by the principles and method of the
positive school. As M. Gautier says, it is absolutely
PRACTICAL REFORMS. 277
useless to dispute about consequences when we start
from premisses so opposed to each other as retributive
justice, according to which every fault demands a pro-
portional punishment — " fiat justitia pereat mundus "
— and social defence, according to which a justice
without social advantage is an unjust justice, afflicted
with metaphysical degeneracy.
The second objection appears to me to have no
better foundation, for the disadvantages of punish-
ments by short terms of imprisonment are organic
and inevitable defects. There is no chance of their
practical amelioration, for they have all been tried,
from the system of association to that of absolute
isolation, from the most inflexible vigour to the
mildest treatment. Amelioration of short-term
punishments can only have an indirect influence
by way of palliation ; but it is the actual imprison-
ment for a short term which is trifling and unavailing.
At the same time, and not to mention other objec-
tions on points of detail, specially applicable to the
form given to conditional sentences on the continent
of Europe, as compared with the American system,
(which is certainly better, since it does not leave the
offender to himself, and is not restricted to the simple
legal relapse), I am not enthusiastically in favour of
the conditional sentence. And my lack of enthu-
siasm, in spite of the first impression, which was
decidedly favourable, is based on different grounds
from those hitherto stated by the opponents of this
reform.
In the earliest edition of this work I maintained
that repression ought to be mild in form for occa-
278 CRIMINAL SOCIOLOGY.
sional criminals, and progressively severe for recidi-
vists and habitual evildoers, until it reached perpetual
segregation. The Italian proverb, that " the first fault
is pardoned and the second whipped," is an uncon-
scious confirmation of the popular opinion. And
from this point of view the conditional sentence, if
combined as in the French law with progressive
severity of repression for recidivists, is sufficiently
attractive in the first instance.
But the conditional sentence, to consider it for a
moment as it has hitherto been propounded and car-
ried out, has two characteristic defects, in common
with the actual penal system, of which its advocates,
for the most part balancing between the classical
and positive school, cannot get ,rid.
In the first place, whilst the classical school has
fixed its attention on crime, and the positive school
studies the criminal, especially in regard to his
biological and psychological character, the advocates
of the conditional sentence (and of the laws which
have so far brought it into operation) oscillate be-
tween the two standpoints, considering the criminal,
no doubt, rather than the crime, but only the average
and abstract criminal, not the living and palpitating
criminal, as he is to be found in his several categories.
In proof of this it is enough to observe that the ninth
article of the Belgian law admits the conditional
sentence, so far as punishment is concerned, when
this punishment does not exceed six months, even if
the period is made up by the cumulation of two or
morel In other words, the conditional sentence is
allowed in the case of a criminal who has com-
PRACTICAL REFORMS. 279
mitted several (offences — which substantially (except
in the few cases of connected offences due to the
same action, or arising out of the same occasion)
is a mere case of relapse, and therefore proves in the
majority of cases that the law is not dealing with
true occasional criminals ; for these, as a rule, like
criminals of passion, only commit a single crime or
offence.
The two fundamental conditions of the conditional
sentence in Europe (a slight infraction and a non-
relapsed criminal) do not, therefore, afford a complete
guarantee of the utility of its application.
It is true that this system tends to fix the attention
of the judge on the personal conditions of the prisoner,
requiring him to decide if the conditional sentence is
suitable to the particular occasion, having regard to
the special circumstances of the action and the indi-
vidual, apart from the legal limitations of the offence
and of the punishment.
But we know that the crowding of the prisons
with persons condemned to short terms of imprison-
ment is attended by a grievous crowding in the courts
of prisoners accused of slight offences and contraven-
tions. Thus it is inevitable that the judges, even
apart from their ignorance of the biological and psy-
chological characters of the offenders, being compelled
to decide ten or twenty cases every day, cannot fix
their attention on the procession of figures which files
past the magic lantern of the courts, but simply leave
them with a ticket bearing the number of the article
which applies, not to i/iejn, but to their particular
infraction of the law. Thus the judges will come to
28o CRIMINAL SOCIOLOGY,
pronouncing the conditional sentence almost mechani-
cally, just as they have come to give the benefit of
attenuating circumstances by force of habit. This
device also was introduced in France in 1832, in
order to " individualise punishment" — that is to say,
to compel the judge to apply his sentence rather
to the criminal than to the crime.
So long as penal procedure is not radically re-
formed, as we have proposed, in such a manner that
the inquiry, the discussion, the decision upon the evi-
dence, which are the only proper elements of penal
justice, aim at and lead up to the determination of a
prisoner's biological and psychological type, it will be
humanly impossible for the practical application of
these judicial measures to overcome the mechanical
impersonality of justice, which applies rather to the
crime than to the criminal.
Hence the conditional sentence, though it was
evolved by the abuse and disastrous effects of short
terms of imprisonment, and in spite of its generating
principle that " the first fault is pardoned and the
second whipped," has to-day only the character of an
eclectic graft on the old classic stock of penal law and
procedure. As such, notwithstanding its attractive
features (for it indicates a step in advance towards
the positive system of social defence, which desires
to see the application of collective defence to the
individual's power of offence), it seems to me to be
destined, not long after its earliest application, to
deceive the anticipations of happy and beneficent
results, such as its advocates entertain.
Moreover, the conditional sentence,* precisely be-
PRACTICAL REFORMS. 281
cause it is a graft on the old classic stock of penal
justice, has another very serious defect, inasmuch as
it overlooks the victims of the offence.
Its advocates, in fact, continue to maintain that
reparation of damage is a private concern, for which
they benevolently recommend a strict remedy, but
which they nevertheless, in practice, entirely over-
look.
The offender who is conditionally sentenced is,
therefore, to secure a suspension of punishment —
which, indeed, it is as well to remember, he also
secures, often enough, by a legal limitation, or, as in
Italy, by the remission of punishments under three
months, accorded whenever (as is generally the case)
there is a petition for pardon. But is there any one
who gives a thought to the victims ^
From this point of view it may even be said that
the conditional sentence makes things worse than
before ; for the victims are not to have so much as
the satisfaction of seeing punishment inflicted on
those who have injured them, in cases of assault,
theft, swindling, and the like. And it is useless to
make the platonic remark, as M. Payer has done, that
punishment is punishment even when conditional,
and involves the censure of the public authority, and
holds in reserve a punishment for relapse, and hangs
over the head of the offender until his term of proba-
tion has expired.
All this is pretty enough — except the relapse, which
implies the poor consolation of a repetition of the
offence, which would be no great satisfaction for the
victims of the first. But it is all hypothetical and
282 CRIMINAL SOCIOLOGY.
theoretical. The essential thing, so far as the victims
are concerned, is that the offender goes unpunished.
It is true that occasional offenders deserve con-
sideration, from the point of view of prevention in
particular; but honest folk who are injured by them
deserve it still more,
I do not therefore agree with Garofalo, who pro-
posed at Brussels that the conditional sentence should
be subject to the consent of the injured party ; but I
think that it ought not to be permitted until there
has been an indemnification for the victims of the
offence, or at least a guarantee, either by the offender,
or directly by the State.
In short, for occasional criminals who commit slight
offences, in circumstances which show that they are
not of a dangerous type, I say, as I have said already,
that reparation of the damage inflicted would suffice
as a defensive measure, without a conditional sentence
of imprisonment.
As to the occasional criminals who commit serious
offences, for which reparation alone would not be suffi-
cient, temporary removal from the scene of the crime
should be added in the less serious cases, whilst in
the cases of greater gravity, owing to material and
personal considerations, there should be indefinite
segregation in an agricultural colony, with lighter
work and milder discipline than those prescribed in
colonies for born criminals and recidivists.
The last category is that of criminals through an
impulse of passion, not anti-social but susceptible of
excuse, such as love, honour, and the like.
PRACTICAL REFORMS. 283
For these individuals all punishment is clearly use-
less, at any rate as a psychological counteraction of
crime, for the very conditions of the psychological
convulsion which caused them to offend precludes
any deterrent influence in a legal menace.
I therefore believe that in typical cases of criminals
of passion, where there is no clear demand for mental
treatment in a criminal lunatic asylum, imprisonment
is of no use whatever. Strict reparation of damage
will suffice to punish them, whilst they are punished
already by genuine and sincere remorse immediately
after the criminal explosion of their legitimate passion.
Temporary removal from the scene of their crime and
from the residence of the victim's family might be
superadded.
Nevertheless it must not be forgotten that I say
this in connection with criminals in whom the pas-
sionate impulse is really exceptional, and who present
the physiological and psychical features of the genuine
criminal of passion which I enumerated in the first
chapter.
I come to a different conclusion in the case of
criminals who have merely been provoked, who do
not completely present these features, who are actu-
ated by a combination of social and excusable passion
with an anti- social passion, such as hate, vengeance,
anger, ambition, &c. Of such a kind are murderers
carried away by anger just in itself, by blood-feuds,
or desire to avenge the honour of their family, by
vindication of personal honour, by grave suspicion of
adultery, &c. ; persons guilty of malicious wounding,
disfigurement through erotic motives, and the like.
284 CRIMINAL SOCIOLOGY.
These may be classed as occasional criminals, and
treated accordingly-
Such, then, in general outline, is the positive system
of social, preventive, and repressive defence against
crimes and criminals, in accordance with the infer-
ences from a scientific study of crime as a natural
and social phenomenon.
It is a defensive system which, in the nature of
things, must of necessity be substituted for the
criminal and penitentiary systems of the classical
school, so soon as the daily experience of every
natioYi shall have established the conviction, which
at this moment is more or less profound, but merely
of a general character, that these systems are hence-
forth incompatible with the needs of society, not only
by their crude pedantry, but also because their conse-
quences are becoming daily more disastrous.
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