Criminal Sociology

hich flows from them, although they have been systematised only by the positive school, are n

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

enomenon 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

emselves. And that is why the practical defects and constant impotence of repression in penal justice are the most eloquent arguments

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 dete

enuating circumstances common to all crimes and offences, such as the antecedents of the accused, venial or inexcusable passion, repentance and confession

t 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

d expedients, really represent, when they are logically co-ordinated and completed, the new system of social defence againt{sic} crime, which is

nal procedure, which are intended to give practical and daily effect to penal measures, for the defence of society against criminals. For, as I maintained in the Italian

of necessity be carried out by a judicial routine. The penal code may remain a dead letter, as, for instance, when it says that punishment by detention is to be inflicted in prisons constructed with cells; for, happily, the cells necessary in Italy for fifty or sixty thousand prisoners (or in France for thirty or forty thousand) are too expensive to admit of the observa

depends, with its adaptation to various types of criminals, on the certitude and promptitude of its appl

wo general principles:-(1) the equal recognition of the rights and guarantees of the prisoner to be tried and of the society which tries him; and (2) the legal sentence, whereof the object is not to define the indeterminable moral culpability of the prisoner, nor the imper

gressive decrease of punishments. Similarly official penal procedure in the nineteenth century has been, and continues to be, a reaction against th

gard to penal procedure, whilst admitting the irrevocable guarantees of individual liberty, secured under the old system, we think it necessary to restore the equilibrium

is doubtless obligatory during the progress of the trial. Undetected criminals are fortunately a very small minority as compared wit

or of confession confirmed by other elements in the trial, it seems fit that the presumption s

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 surprise

eracy of the legal maxims, whereby propositions based upon observation and generalisation from existin

st 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 incompre

on his trial is entitled to have his innocence declared, it it has been actually proved. But if the proofs remain incomplete, his only right is not to be condemned,

since his culpability has not been proved. But it is not the duty of society to declare him absolutely innocent, when suspicious circumstances remain. In this case the only logical and just verdict is one of ``not proven.'' Suc

an accused person, it cannot be put right. The influence of the individualist and classical school is here manifest, for, as M. Majno says, ``the justice of sentences rests as much on just condemnations as upon just acquittals.'' If the individu

ms at restoring, something must be said as to the regulation by which, if the

appeal is brought by a condemned person,

ractical 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 ar

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 i

r 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

vidual and social rights, is not content with taking the part of society agai

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 i

ool also, but, like criminal lunatic asylums, alternatives for short terms of imprisonment, and so on, they have generally remained inoperative, for they are not in harmony with the bulk of traditional theory, and only in a positive system have th

stinct 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

t or prejudice in favour of the governing powers.'' The latter, indeed, notwith

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 parti

ings, to add to the action of a Public Prosecutor (but

forms, according as they are put in operation

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

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 ac

entered on the records,'' or, in other words, they were not followed up; and in 1889, out of a total of 271,279,

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

nces there are varying degrees of readiness to bring charges against lawbreakers rather than to take personal vengeance. But in one and the same nation this vindictive spirit and this readiness to bring charges cannot vary so greatly and rapidly, especially within ten years, as in Italy; for the per

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

n the other hand, I am inclined to think that the importance of the Roman civil law has been exaggerated, and that the spirit of the corpus juris springs from social and economic conditions so different from our own that we can no longer feel bound to submit to its tyranny. The penal law of the Romans, however, contains several maxims based on unquestionable common sense, which deserve to be rescued from the oblivion to which they have been condemned by the dogmatism of the classical school. Examples of these are the popular punitive action; the distinction between dolus bonus and dolus malus, which belongs to the theory of motives; the stress laid

158>monly advocated, even by the classical school, t

es, offences against the law of public meetings and associations, and the abuse of public authority. But I consider that this action would be a ne

cuted. 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

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

``Le Sang Innocent Veng.'' In the records of the tats Gnraux there were many votes in favour of this reform, which Louis XVI. caused to be introduced on May 8, 1788. In 1790 Duport brought in a measure in the Constituent Assembly; but it was rejected after a short discussion in February, 1791, during which the same practical objections were urged as have been repeated up to the present time. Neverthele

hensively 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

uty 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 difficulti

ed, or extended to persons wrongfully prosecuted, is included in the penal codes of Hungary and Mexico, and by special laws in Portugal (188

en who has done nothing to subject himself to prosecution or condemnation, cannot be seriously contested. But the whole difficulty is reduced to decidin

en years' imprisonment for a crime which he had not committed. But if the policy of retrenchment imposed on the European States by their insane military expenditure and their chronic wars prevents the carrying out of this proposal, there is the Italian precedent of the Treasury of Fines, which

y with the more effectual indemnification of the victims of crime. The object is to prune the long and constantly increasing list of crimes, offences, and contraventions of all acts which result in slight injury, committed by occasional offenders, or ``pseudo- criminals''-that is, by normal persons acting merely with negligence or imprudence. In these cases the personal and social injury is not caused maliciously, and the agent is not dangerous, so that imprisonment is more than ever inappropriate, unjust, and even dangerous in its consequences. Deeds of this kind ought to be eliminated from the penal code, and to be regarded merely as civil offences, as __*simple__ theft was by the Romans; for a strict indemnification will be for the authors of these deeds a more effectual and at the same time a less demoralising and dangerous vindication of the law than the grotesque condemnation to a few days or weeks in prison. It will

I

nction 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

al

trial will always be the verification o

s were anti-social and unlawful, and then there is no place for those grotesque and often insincere contests between the prosecution and the defence to prevent or to secure an acquittal, which will be impossible whatever may be the psychological conditions of the criminal. The one

gal devices, which make every criminal trial a game of chance, destroying public confidence in th

l, who will himself be the true and living subject of the trial. As it is, the whole

trial is developed from the material fact; and the whole concern of the judge is to give it a legal definition, so that the criminal is always in the background, regarded merely as the ult

iscussion, 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 agai

ives and the anthropological type. Hence arises the necessity for the positive school of reconsidering the testimony in a criminal case, so as to give it its full importance, and to reinforce it with the data and inferences not only

s ordeals and combats; the legal stage, accompanied by torture; the political stage, with private conviction and the jury; and the scientif

tion of evidence (police and preliminary inquiry); discussion of evidence

methods in the detection of the guilty. Tattooing, anthropometry, physiognomy, physical and mental conditions, records of sensibility, reflex activity, vaso- motor reactions, the range of sight, the data of criminal statistics, facilitate and complete the amassing of evidence, persona

equacy of evidence, and the frequency of trials which are based solely on circumstantial hints, it is ea

on, 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 mo

t a person accused of theft was not guilty of it, but that he was on the contrary guilty of another theft, of which he had not been so much as suspected. On another occasion they establ

e case of a sham epileptic in Paris, ``whose sphygmographic lines have no resemblance to those of true epileptic

w any legal conclusions from it; but it cannot be questioned that this is a val

logical 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

ia 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

ular witness is or is not hysterical would bring a smile to the face of the judge, very learned, no doubt, in Roman law or legal precedents, but certainly ignorant in physiology, psychology, and psycho-pathology. Yet the tendency to slander in hysterical cases, which M. Ceneri urged so eloquently in a celebrated trial or the tendency to untruth in children, which M. Motet has ably illustrated, are but manifest and simple examples of this applicability of normal, crimina

inquiry. In a question of forgery, poisoning, or abortion, the judge has recourse to experts in handwriting, chemistry, or obstetrics; but beyond these technical, special, and less frequent cases, in every criminal trial the basis of inquiry is or ought to be formed by the data of criminal bio

al 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 arbi

le to say why an expert ``wanted to examine the feet of a prisoner in order to come to a decision about his head.'' This president,

who was an excellent magistrate and a learned jurist was wholly unacquainted with the elements of

hysician, and of the absurd and shallow idea which superficial persons entertain of those who are insane, picturing them as constantly raving, the

low the acquittal and discharge of criminals who are found to be of unsound mind. It will eventually disappear, either by the wider diffusion of elementary ideas of psycho-

for the sake of eliciting both sides of the question, without, however, going so far as the individual exaggerations of complete pu

ssary reform. That is the institution of a sort of public defence, by a legal officer such as used to be found in certain of the Italian provinces, under the title of ``advoc

inated all verbal contention over the precise measure of moral responsibility in the prisoner, the whole debate will be a criticism of the personal and material indications, of the

l trial is arrived at in the third stag

ve, 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

e 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, a

of humanity, looking solely to the juridical bearings, inasmuch as civil law is mostly ignorant of all that concerns the physical and moral na

unity, 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 th

university, for in the courses of the faculty of law it will be necessary to introduce a more vigorous and modern stream

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 pr

with the object of securing detectives distinguished not only for their perso

which is now the only authority responsible for the advancement and allocation of judges. But this independence would not be exempt from every kind of control, such as public opin

yable 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 most academic and exalted codes are of little avail if there are not good judges to ad

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 le

her, from the unbounded authority of the Middle Ages to the Baconian aphorism respecting the law and the judge, according to which th

o 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, a

inal being kept in the front, then it is clear that the penal code should be limited to a few general rules on the modes of defence and social sanction, and on the constituent

elements of ev

ee against judicial errors and surprises, but which should be carefully distinguished from that hollow and superstitious formalism which generate

I

nd 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 persist

his seems to me to be the capital defect of the jury. All other defects might be eliminated by a good law, but this one is inseparable from the jury. . . . Even amongst magistrates we may find the harsh and the clement; but in the main they judge according to legal argument, and one can always more or less foresee the issue of a trial{.??} But with juries all forecast is rash and deceptive. They decide by sentiment; and w

of Pisa to a lecture by Carmignani against the jury,

here is always a prominent political character in the jury. This accounts for the more or less decl

d by classical antiquity, in the order of justice it adopted this institution from England. The jury was not un

known to the Republic of Athens and Rome, but it was developed in the Middle Ages by the ``barbarians,'' as an instrument which helped the people to escape from tyranny in the administration of the law. It used to be said that the jury made a reality of popular sovereignty, and sub

ly, on August 14, 1789, was a mere counterfeit of that which it was, and is, in England. But its political character is still so

d defects, both from the political and from the legal point of view, and ac

ion to popular sovereignty; for it is admitted that the power of the law not o

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

aw. 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 c

ges of the jury, however,

ry small proportions by the limitations of the jury list, and of the funct

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

ought, according to the spirit of the institution, to administer justice on every civil or criminal question, whatever its importance, and not only in giving the final verdict, but also in conducting the trial. Yet not only is the ancient trial by popul

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 numer

e jury, experience shows us that the jury is of

. Also the example of classical antiquity is opposed to the institution of the jury, which has been imposed upon us by eager imitation and political symmetry; for if the jury had disappeared amongst continental nations, this simply means that it did

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 thi

re, direct or indirect, especially in view of the secrecy of their individual votes. No doubt there

ck Cavendish, in 1883, the empanelling of the jury was very difficult, f

s its necessary complement, we have to remark that this would be true if the jury were instituted by a despotic government; but when popular li

, 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 l

instance, in upper Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in Lombardy by Austri

ned to be excluded when it would be serviceable, and to be useless wh

al institution; and the main qualities attributed to it in thi

ossible cases. Progress is so rapid and manifold, in modern society, that penal laws cannot keep pace with it, even though they are frequently recast-as for instance in Bavaria, w

s with verdicts superior to the written law. And, in addition, the jury always follows its private conviction, the inspiratio

much suspect that they are serious and dangerous vic

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 abov

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 slig

artificial assurance of the law the assurance of the judge who tries the case, and quite another thing to substitute for conviction founded o

ons of a casual juryman. If a criminal trial

consisted of the simple declaration that a particular action was good or bad, no doubt the moral consciousness of the individual would be sufficient; but since

f the judgment of juries we mu

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 acquai

tributed to it; it has a fatal defect, which alone

sts 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

n with the universal rule of public end private life, that social

ce, of having his watch mended by a cobbler. The administration of criminal justice, on the contrary, is demanded of any one we chance t

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

onsider the possible consequences of his actions. And the criminal law demands from juries this proof of

their blindness (which is fortuna

to see the absurdity of these principles; and they have been

e, &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 i

ns of adequate capacity, it would still be condemn

the combination of two gases may give us a liquid

so in psychology the assembling of individuals of good sense may give us a body void of good sense. This is a phenomenon of psychological fermentation, by which individual dispositi

erved in casual assemblies, such as juries, meetings, and the like, fa

erage capacity, will never be able in its judicial func

y. 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 c

y the formal distinction between a decision of fact and a decision of law, in obedience to the advice o

indivisible as the syllogism which creates it, is cut into two parts, it is evident that Cambacrs

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 f

rtion of those who say with Beccaria that, ``for the appreciation of facts, ordinary intelligence is better than sci

fact. But in criminal justice the fact is the principal element, and it is not merely necessary to admit or to decide upon this or that detail, but we have also to regard its causes and effects, from the individual and the social point of view, without speaking of the common difficulty of a critical and evidential appreciation of

dable consequences of a more or less fortunate application of the principle, which might be the case with any

solated

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 t

l studies and for technical knowledge; the only need is for oratorical persuasiveness and sentimental declamations. Thus we have heard an advocate telling a jury that, ``in trials into w

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 influe

ly that the habit of judging crimes and offences irresistibly inclines the judge to look upon every prison

nd the polarisation of the intellectual faculties and dispositions, are facts of daily observation, determin

s which I have indicated, it is to be observed that this presumption of innocence, as we have seen, is not so absolute as some wou

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

mstances, is always very remarkable, even in the Correctional Tribunals, which

as the assigning of reasons for the sentence, the almost total abolition of punishments which cannot be reconsider

ing of a jury even in the Correctional Tribunals, though the experience which we have of it in

n the most positive data of sociolo

a slow and gradual preparation by organic forces and external conditions. Thus an organ which ceases to have a function to discharge is s

utions of the continent, without the long-continued, spontaneous and organic connections which it had, for instance, with the English people. The jury had even disappeared from the continental countries in which it had left traces of former existe

false membrane in the social organism, having no physiological connection with the rest of the body p

ria, Dalmatia, Rhenish Prussia, Alsace-Lorraine, Bavaria, Bohemia, Gallicia, Belgium, Roumania, Greece, Portugal, Russia, and Malta, have the criminal jury only. Spain had suspended it, but restored it in 1888. Prussia, Saxony, Baden, Wurtemberg, have the

magistracy have been developed side by side and interwoven, this is only a case of organic integration. But on the continent, as

rentiations which amount to evolution and those which, on the contrary, are symptoms of dissolution. Division of labour, physiological or social, is a true evolutionary differen

rm different functions, whilst in the vertebrates the stomach can only serve for digestion, the lungs for oxygenation, and so on. Similarly in primitive societies, each individual is soldier, hunter, tiller of the soil, &c., whilst with the progress of social evolution every man performs his special function, and b

nstruction of the conditions of an act and of its author. It has no direct influence on the positive function of the person elected, but on the contrary it is a confession of the special incapacity of the elector to do what he intrusts to the capacity of the person elected. The franchise is

ty. In the first place, the people have but a very indirect share in the legislative function, and, even where the referendum exists, very useful as I believe it to be, the people have only a simple, almost negative function, to say Yes or No to a law which they have not made, and would have had no technical ability to make. Thus the argument of Carrara could

only lead to the popular election of judges,

isfortune), 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 some

ury should be abolished for the trial of common crimes, *after the introduct

e, it is worth while to indicate the principal and most urgent reforms which should be made

the pretext of a popular idea. Instead of distinguishing crimes, I think we ought to distinguish between ordinary and political criminals, according to their determining motives, and the social bearings and historical moment of their acts. At the same time, whilst our criminal laws retain this distinction, I think it is useful to keep the jury for the trial of political crimes and offences, and for those connected with the press and with society as a whole; for if in these cases the jur

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, th

to specify attenuating circumstances, on each of

inding in a sense less serious than that of the charge,

denied that these would only be pa

ical and social

order, we should aim at its abolition for common crimes, immedia

V

n measure the moral culpability of criminals, and partly on an illusion as to their general amendment, and almost entir

taking steps to counteract this failure is forced upon us more and more every day. We must proceed either by way of legislative reforms, as effectual as we can make them, but always inspired by reaction against the established prison system, or by a propaganda on scientific lines. The most striking form which has been

ponsibility; 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 pa

impersonality of modern justice, allow their sentences to fall upon unh

80-89, to various terms of imprisonment, 587,938 persons by the Pretors, and 465,130 by the Co

unishments, by Pretors, Tribunals, and Assize Courts

ial Statistics.

That is to say, amongst the prisoners condemned in 1887 for simple homicide, there were 224 who had been already condemned, either *for the same crime (63), or for a crime men

ceptional conditions, or conditions peculiar to this or that country, but to the un

als, and detained by the police, in the ten years 1879-88, was

Assize Courts, Tribunals, and police courts, reached in the

f individuals, who lose amongst its wheels their life, their honour, their moral sense, and their health, bearing thenceforth the inef

d is in as bad a position as Italy and France. See my articles in

anisation a better system corresponding to the governing conditions of crime, more effectual for soci

myself in the second edition of this work, has put forward in the Criminology of Ga

ensibility and instinct

greed, or o

Criminal Lunat

d by the victim

th attend

e sense of pity, with prejudices on the subject of ho

der from the by a cruel injury neighbourhood of the vi

ion to an i

nour (isolated or vil

pervision (for

th from 5

rvis

a quarrel; Damages an

tory malice; as c

der; verbal penalty:

orced labour

e of r

isfigurement; Crimina

outrage with hysteri

n personal Transporta

d, with super

0 ye

ng persons

lunatic a

ith con

nce without exc

colony in ca

ion without

CRIMINALS. Ad

ng, incendiarism, Lunat

ion epileptic).

gs (unfixe

ndling; or suspension

incendiarism a profe

ion of

ent; sale of Loss of

thority civil rights

ction imprisonment). Criminal of property (without personal lunatic

e Restitution. Prohibition to trad

d periods) and certificates; personation, and fine, in add

ealment of Banishment f

rsons wh

ural colony

ndling, &c

sons gu

disobedience Imprisonme

utho

of repression proposed by M

mination of the crim

lunatic

ation wit

al bani

ion Banishment fo

tural c

on from a

hbou

ment o

damages Deduct

he State) Forced

n of the victi

d outbreaks); or as alternative to indemnification or forced la

has propounded a scheme, which, however, as it does not sufficiently consider various classes of criminals, whom he divides merely into the habitu

ment b

nder-not alternative with For offences (w

raventions of the law forced labour wit

onal se

to imprisonment, with or wit

three years

for an indeterminate peri

rate confinement-six

(separate for 2 to

l relaxation supervis

prisoners)-

as a civil liability) a

ore or less complete, to establish certain general criteria, based upon the anthropological, p

ity in the periods of segregation of criminals; (2) the social and public character of the ex

question whether by the actual conditions (breach of law or infliction of injury) and by the personal conditions (the anthropological type of the criminal) it is necessary to separate the offender from his social environment

le 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

d 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 seclu

e, to begin with, that seclusion for an unfixed period, as for life, is in no way irreconcilable with this principle of law, wh

il we come to perpetual seclusion or transportation, and even to death, as under the medival laws. So that there are some of the classical school who,

when the prisoner seems to have given proof of amendment, the natural consequence, by mere abstract logic,

s, Henke Stelzer, Reichmann, Mohl, Groos, von Struve, von Lichtenberg, Gtting, Krause, Ahrens, Lucas Bonneville, Conforti, and o

developed by a few German writers. These latter have insisted

especially on the disadvantages of the penal systems inspired by the class

ng 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 recours

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

udge, 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

aper on ``conditional liberation,'' at the

ociation, has already made great progress, especially in England and America, since the Prison Congress of London (1872) discusse

n between habitual criminals, incorrigible and corrigible, and occasional criminals. ``For the first group, perpetual imprisonment should depend on certain conditions fixed by law, and on the decision of the judge after a further inquiry. For the second group, the application of an undefined punishment after the completion of the first sentence will have to depend in the graver cases

l 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,

ent, that the principle of segregation for unfixed periods has been developed and accepted by va

(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 P

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

ght be associated the prison studies and aid of

included in every preliminary criminal inquiry. As for the determination of the maximum and minimum in such a sentence, I believe it would not be practicable; the acting commissions 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 pr

ge inflicted is not sufficient by way of a defensive measure, the judge will only have to pronounce in his sentence an indefinite d

logy, 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 punishme

e 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

t

n 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,

ho 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 distr

ferent 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 ho

lves solely with occasional criminals, and especially with the young, and make t

inst crime is that of indemnification for damage, on which the positive school h

inal to the injured party; (2) as an alternative for imprisonment for slight offences committed by occasional criminals; and (3) as a socia

ve of Garofalo and Puglia, and the third on my own proposal, which, as being mor

reparation, 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, instead 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 misch

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

t strongly on these ideas, enlarging upon them in var

fication, 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 abetto

nevitably 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 t

f indemnification to the civil experts, and these in their turn have almost suffered it to pass int

e positive school that this legal custom h

ing 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

e to the victims of offences than the superfluous, or ironical, or immoral declaration that ``penal condemnation does not

assign to indemnification as a social function. For us, to compare the liability of the criminal to repair

ssory 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 criminals, strict indemnification will, on th

ne or an indemnity payable to the State, and as an in

he victims, and give them immediate satisfaction, especially for crimes of violenc

e, 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 propo

from them, are more like a humorous farce than an institution of justice; and it is

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 concern itself with the victims of the crime, leaving th

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

ify individuals for the damage caused by crimes which it has not been able to prevent (as

d 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 believ

l defence against crime, apart from the technical systems of imprisonment and detention, so indemnification as a social

e into practical operation according to a general rule, which leads up to the practical organisation

ne is in sharp contrast, for their ideal is the ``uniformity of pun

e ``amount of punishment.'' And then it is natural that this punitive dosing should be more difficult when the punishments are different in kind, and not very similar in their degrees

n of penitentiary systems, either in association or on the cellular plan,'' which he himself decided in the affirmative, was not so much as discussed, and it was not even referred to at the

successive Congresses at Stockholm (1878), Rome (1885), and St. Petersburg (1889). On the contrary, the Congress at Stockholm decided that, ``reserving mino

ositive tendencies maintains ``the very great use, or rather the scientific necessity, of the

f mere detention, appears simply absurd, since it ignore

a moral (I would add a physical) patient, more or less curable, and we must apply to him the great

ff 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 impossible to observe and get to know the special character of each condemned person, and so specialising the discipline? Where, too, are we

monumental'' code with foolish judges, so a prison system, however i

f classification, which is equally efficacious and more easily applied. It cannot be denied that criminal anthropologists are not all agreed on the classification of

criminals. But I have already sho

efence on the basis of this anthropological classification of criminals, we must

ontinue to be (as it is too often at present) a welcome refuge

ers before trial and those for convicts!-should not be so comfortable as to excite the envy (a vast injustice and impr

of sickness. Prisoners should pay the State, not as now for their tobacco and wine, but for food,

ligation 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

y 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

of him, ensuring for him comfortable lodging, plenty of food, and light labour, if it does not

abour 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 f

e that maxim of universal application: ``He

re de Boismont, a whole library of volumes has been published in favour of criminal lunatic asylums.

propriated to criminal lunatics, and the Broadmoor Asylum was founded in 1863. Similar asylums exist

founding a special ward in 1876, at the establishment 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 gener

e authors of crimes or offences who are acquitted on the ground of insanity are withdrawn from all control by the judicial authority, and entrusted to the more or less regular and effectual control of the administrative aut

ion, if only by reason of the damage which they cause. I also pass over the other objection, 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

egard to lunatic asylums spring from the very p

o Fabret, Mendel, and others have said; his action is not a crime, for he had no

control over himself, and he ought to go to an ordinary asylum, special measure

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

000 known epileptics in France, 5,200 only are in private or public asylums, whilst 28,000 remain with their families. F

e association of their quiet and harmless patients with murderous and outrageous madmen. But experience has already proved that these special wards do not

to be mad, should cease to be regarded as a criminal, and

the grave fact of having killed, or burned, or outraged, it is clear that he cannot ``pur

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,

men, when it is said that

a madman cannot, for the sole reason that he

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 do

cks. For it is certain that the mad murderer ``has committed 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 fa

usion 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 disallowing 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 phenomenon as natural as madness-the existence of society

nsibility, on the strength of which these asylums were, and still are, opposed by the intransigents of the classical school. This is why the new

Italian penal code, in spite of its progressive aim, had not the courage in 18

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,

iry; (2) convicts who become insane during the expiation of their sentence; (3) insane persons who commit crimes in the ordinary asylums; (

9 male patients and 126 female; and in 1883 there

nals. Mal

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rison at Waldheim, t

esponding classes of

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ife, or else a careless selection for conscription, or both causes taken together; and (2) a greater proportion of mad criminals amongst th

irmed by the figures for England, is the most cog

he

human species, and the problem is to diminish their number as much as possible, a preliminary question at once arises, namely, whether the pe

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, w

but the disagreement on this subject is not equally serious in the two camps. For whilst the classical abolitionists almost all assert that

t opposed to justice, for when the death of another man is absolutely necessary it is legitimate, as in the cases of lawful self-

the struggle for life. Now this selection, in humanity as with the lower animals, may be natural or artificial. It would therefore be in agre

ial 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 individual

ssary in the normal conditions of social life. Now it cannot be questioned that in these normal conditions society may defend itself otherwise than

ue sphere of observation. 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 premeditation, and then he is determined in his action, not by a dubious comparison

ary impression, which cannot, however, restrain him from crime, for here again, by

ent for life (always excepting condemned suicides, and those who by their physical and moral insensibility

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 crim

nd 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

, irrevocable, and instantaneous elimination from society of an individual who has shown himself absolutely unadaptable, and dangerous to society. But I hold that, if we would

draw from the death penalty the only positive utility which it possesses, namely, artificial selection, then we must have courage enough to apply it resolutel

and neglected means of terror, merely to be printed in the codes;

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 whe

not cure the disease of society. Only the slaughter of several hundred murderers every year would have

a sensible result in the way of artificial selection; but that is more easily said than done. And I

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 Medico-Legal Journal of New York, March and S

e

ntences.

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w Zealand (1870-

out 2,500 murders

nd 100 lynch

r 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 leg

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 Beheaded, between 1500 and 1770 there were 5,280 executions, or 1,955 in each century, in the city of Ro

inly owe in some degree the purification of society by the elimination

ng 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 medival modes of extermination, I am s

tions which would make it efficacious, for the born criminals who commit the most serious crimes, there rem

ther. 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 des

in cases of legitimate self-defence; and that punishment is exhausted by excess of duration, when it is precisely the duration of banishment from one'

``is contrary to the reformative principle of punishment, to the principle that punishment ought to aim not only at

afflicting the prisoner, but also at arousing in him, if possible, the m

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,

ious 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 psy

ols, entirely in favour of the criminal, and always tending to the relaxation of punishments. The interests of society are too much disregarded

when it is sought to pass from the abolition of capital punishment to

is between transportation

irector-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 o

us prisons built in distant lands. M. Beltrani Scalia justly said that we might as well build them at home, for they will

erpetual, with very faint chances of return, it is the best mode of ridding society of its most injurious factors,

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, mig

specially in view of the lack of colonies; for then there was always the obstacle of which Franklin spoke in reference to transported 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 Parliament in

lf in favour of transportation for Belgium,

lony for adults ought to be a pioneer of the free agricultural colony. The problem of a penal c

t consider whether convicts would not cost less to transport into districts nearer home which need to be cleared, a plan which

terior or beyond the seas, for born and habitual criminals

minals, wherein should be confined for life, or (the same thing in this case) for an indefinite period,

scrofula or consumption. The greater number of crimes come from a comparatively 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 beati

anished, as belonging to an incorrigible family.'' Carrara called this a mistaken 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 t

ni, Doria, Tamassia, Garofalo, Carelli; in France by Despine, Labatiste, Tissot, Leveill; in Russia by Minzloff; in England by May; in Germany by Kraepe

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 cr

ntries which, having made no great advance in the criminal scien

and especially after the advocacy of M. Reinach, followed by several publicat

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 C

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 crimin

gressive increase of punishment in cases of relapse,'' which became law on Marc

ing the indefinite seclusion of hardened criminals, as they have already come to acce

victs.'' And speaking as a delegate from the Law Society of St. Petersburg, M. Spasovitch 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

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 imprisonmen

l measures, framed with the purpose of preventing them from inflicting harm, and of amending them if possible.'' And in the session at Christiania (August, 1891), 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

orm the perpetual or indefinite segre

pted in every country: penal colonies, whereof transportation is only a factor, and the prison cell. The cell has assumed a leading position

f common prisons and labour establishments, may have had, and doubtless still has many advocates, amongst other reas

t 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 vigilance and prisoners' aid societies. This is called ``separate confinement.'' After this it was recognised 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) of silence. And finally, seeing that in spite of the threefold pana

, each of which constitutes a phase of the progressive 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 Auburnian phase, of isolation by night and labour (when labour is accorded) by day, with the constraint of silence. Then an intermediary period in the agricu

ulator, depending on the number of marks gained or lost by the prisoner through his good or bad behav

of the cellular system, reconsidered the ideas which it had based on daily experience, and was the first continental

e 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

of prisoners before trial, after the preliminary examination), cellular isolation by itself

risons 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 b

t I denounced the cellular system as one o

when reduced to its lowest terms by the new Italian code, wherein Parliament, accept

ion that perpetual punishment should be abolished; and this renders recidivism possible even in murder. But it is clear that what we ought to abo

or consumption (by onanism, insufficient movement, 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 decid

turn 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

r 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 hand

dependent on the open air and light. Apart from that, isolation has very different effects amongst people of the same nation, according to the different vocations

of the prisoners, especially of occ

lowing resolution:-``The cellular system, where it is in operation, may be applied without distinction of race, social condition (as regards townsmen or rural population), or sex, provided that the authorities have regard to these special condition

e only form of imprisonment-which, however, is enacted in th

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 exhibition of various plans of cells in connection with the Prison Congre

possible, in accordance with recent experience, in the construction of cellular prisons so as to render it more simple and less costly, without detriment to the necessary conditions of a sound and

2

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

ough 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 shoemaking

ls, to provide for isolation by night, which requires buildings f

only useful basis of organ

l-these are the only physical and moral disinfectants possible for prisoners not entirely degenerate, or likely to

n, 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

lands already cultivated is bes

nals, against whom it would not be sufficient to exact strict r

hy 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 accustomed when at liberty. For town convicts without a trade, such as vagabonds, beggars,

es; 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 agricul

tivity, and, as a consequence, between the methods of defence

against them. That is to say, we must distinguish between the initial mome

ady indicated for born criminals. The latter are incorrigible through congenital tendency to degenerate, and the former are incorrigible through acquired tendency; but they end in the same degree of anti-sociality and brutalisation. There is, however, this difference, that habitual offenders nearly always c

than of repression, so as to save them from being driven, by a mistaken prison org

e preventive methods may have a sensible effect in diminishing crime. But we must take care, in place of the pedantic graduation of responsibility which sa

al 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 c

icultural colonies with a discipline different from that of the colonies for adult criminals, but sti

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 destroyi

as an attack of indigestion, or a heavy fall of snow, are so manifest that the objection to t

rs have proposed domiciliary arrest, sureties, judicial warnings, compulsory work without imprisonment, conditional suspensi

ms of imprisonment can be applied as effectively or as general

r 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

re too rarely applicable to be any more than an exceptional and accessory measure, taken

h 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,

ut as a mode of enforcing strict reparation of damage, which I still believe to b

rime was committed), which may be added as a preventive measure, and as a satisfaction for t

tion 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 senten

sion, however, assumes

nal; 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, an

combines probation with sureties for good conduct. Judgment is given, but sentence is not pronounced. The suspension is not granted to any one who has previously committed an offence, or who

ial officer, and no surety for good behaviour; judgment is delivered and sentence pronounce

val for taking cognisance of relapse, and other details, was proposed in France (1884) by Senator Brenger; but Belgium was the first country to adopt it in the la

olutions, on the advisability of substituting for punishment with hard labour either simple detention without labour or

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

itional sentences for short terms of imprisonment; but no resolution could be arrived at on thi

eral Bills have been introduced, d

f 1888 requires the keeper of the seals to report annually to Parliament; a

in

the Correctional Tribunals, 8,696 were conditional; and there were 192 relapses. Ou

the penal code; 2,286 for breaches of police regulations; 447 for breaches of co

these sentences have been most fre

ional.

g ... ... ... ...

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reach of Trust

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... ... ... ...

ry, 49; Adultery, 48; Adulteration of food, 44; Unlawful wounding, 45; Unlawful possessi

ere not over six months' imprisonment, 7,932 were conditional, and there were 223 relapse

fences was approximately the

conditional sentences in Belgium, as we might expect from the brevity of

chusetts probation system a

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 probation of

n there were put on probation, between 1879 and 1888, 3,161 persons charged with drunkenness for the first time, 222 charged with habitual drunkenness, 211 with drunkenness for the third time,

in the two countries, the Boston system is applied mainly to drunkard

did 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 more 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 ac

of absolute justice, according to which every offence should be visited by a corresponding punishment, and that short terms of imprisonm

to dispute about consequences when we start from premisses so opposed to each other as retributive justice, according to which every fault demands a proportional punishm

nce 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 treatmen

can 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 condition

s, until it reached perpetual segregation. The Italian proverb, that ``the first fault is pardoned and the second whipped,'' is an unconscious confirmation of the popular opinion. And fr

carried out, has two characteristic defects, in common with the actual penal system, of which its

d 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 more! In other words, the conditional sentence is al

pe (a slight infraction and a nonrelapsed criminal) do not, theref

ring him to decide if the conditional sentence is suitable to the particular occasion, having regard to the special c

, 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 *them, but to their particular infraction of the law. Thus the judges will come to

re 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 impossibl

he 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 t

a graft on the old classic stock of penal justice, has another very

e is a private concern, for which they benevolently recommend a stric

ember, he also secures, often enough, by a legal limitation, or, as in Italy, by the remission of punishments under three months, a

ted 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. Fayer has done, that punishment is punishment even

nce, which would be no great satisfaction for the victims of the first. But it is all hypothetical and

, from the point of view of prevention in particular; but

o the consent of the injured party; but I think that it ought not to be permitted until there has been an indemnif

they are not of a dangerous type, I say, as I have said already, that reparation of the damage

ime should be added in the less serious cases, whilst in the cases of greater gravity, owing to material and personal considerations, there should be inde

pulse of passion, not anti-social but susceptible of

gical counteraction of crime, for the very conditions of the psychological convuls

s 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 th

m the passionate impulse is really exceptional, and who present the physiological and psy

cial 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 persona

and repressive defence against crimes and criminals, in accordance with the

the daily experience of every nation shall have established the conviction, which at this moment is more or less profound, but merely of a general character, that these