details, the social organism will be so adjusted that human activity, instead of being continually and unprofitably menaced with repression, will be insensibly directed into non-criminal channels, leaving free scope for energy and the satisfaction of individual needs, under conditions least exposed to violent disturbance 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 substitutes themselves that we should bear in mind if we
would realise their
theoretical and practical value as part of a system of criminal sociology.
As for the efficacy of any particular penal substitute, 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 sociologists 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 phenomenon, assuming large proportions, carries off many persons who are easily driven to crime by wretchedness, or by their unbalanced energy. Thus the number of recidivists has diminished in Ireland, not by virtue of her prison systems, but by emigration, which reached forty-six per cent. of released prisoners. In Italy, also, there has been a decrease
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. Villerm<e’> 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 temptation, 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<e’>gier describes the
criminal industries which are called into existence by _octrois_, and which will disappear with the abolition of these absurd and unjust 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 </e’></e’>
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.–Immunity from taxation for the minimum necessary to existence, by preventing distraint, and the consequent 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, estimated 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
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 France, 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 inevitable variation from year to year, there is a manifest correspondence of increase and decrease between the number of homicides, assaults, and malicious wounding, 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 vintages (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. Pierquin amongst others, and illustrated by the newspaper reporters on the days which follow Sundays and holidays.
But apart from their natural variation, the connection between drink and crime is definitely established. Every day we have the confirmation of Morel’s statement, 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
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 impossible to establish any statistical relation of cause and effect between these phenomena.”
Passing over the grave errors of fact in M. Colajanni’s brochure, I will only observe that this pro
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 physically and morally injurious to individuals, is not hurtful to nations, which are but aggregates of individuals.
There is an easy answer to the statistical arguments. (1) 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 exceptions, 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
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 necessary 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,
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 inadequate 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 adulteration.
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 taxation 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 compulsion, will ever be able to paralyse these natural tendencies, which can only be weakened by indirect
measures. On the other hand, when we remember that habitual intoxication, so common in medival 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 succeed 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.[14]–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 medival punishments never prevented the recrudescence of usury in one form or another. Popular and Agricultural 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 influence of the old illusion.–With the diminution of interest on the public funds the stream of capital has been diverted into commerce, manufactures, and agriculture, thus warding off stagnation, with the
bankruptcies, forgeries,
frauds, &c., which result therefrom.–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, concealment of stolen goods, and indecent assaults.–Inspection 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
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 stopping short at mere superficial and perfunctory reforms, might constitute a genuine code of penal substitutes, which could be set against the mass of criminal impulses engendered by the wretched conditions of the most numerous classes of society.
[14] 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 banknotes.
II. _In the Political Sphere_.–For the prevention of political crime, such as assassination, rebellion, conspiracies, civil war, arbitrary repression and prevention by the police are powerless; there is no other means than harmony between the Government and the national aspirations. Italy has been a conspicuous 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
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 centralisation, 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 administrative 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
average convict’s garb is too
long for those who are short, and too short for those who are tall. Administrative federation with political unity (_e pluribus unum_) would furnish us with an aggregate of penal substitutes, restoring to each part of the social organism that freedom of movement and development 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, lithography, new poisons, dynamite, electricity, hypnotism, and so forth, sooner or later provides the antidote also, which is more efficacious than penal repression.– The press, anthropometric photography of prisoners, telegraphy, railways, are powerful auxiliaries against crime.–Dissection and the progress 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, comparatively 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
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.[15]–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.
–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.
[15] No doubt there may be a difference 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 Th<e’>orie
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 has indicated a distinct epidemic mania on the continent of Europe.</e’>
IV. _In 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
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 therefore to contraventions and offences.–Commercial laws on the civil responsibility of directors, on bankruptcy proceedings and the registration of shareholders, 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 conveyancing checks forgery and fraud, just as registration offices have almost abolished the palming and repudiation of children, which were so common in medival 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
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 intervention, 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 rendering 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
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 entertainments.–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 excellent 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 archaology, 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 of 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 industrial schools, so well developed in England–or, still better, by the boarding out of children, so as to avoid over- crowding.–One class of inducements to crime
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 crimes with greater smartness and precaution.
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 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 reforms are much more serviceable than the penal code in preventing an inundation of crime. The legislator, 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 problematic 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 become evident. Whilst we believe that social reforms
and other measures suggested by a study of the natural factors of crime are most effective in preventing crime, legislators, employing the _a{sic} 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 _Dum Rom consulitur,
Saguntum expugnatur_.
And when the legislators find their Byzantine discussions on the “juridical entities” of crime and punishment broken in upon by a recrudescence of crime, or by a serious manifestation of some phenomenon 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 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 sufficient has been done in this respect by means of reforms 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 substitutes, 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
of inevitable
criminality, due to the influence of the other factors, biological and physical. Otherwise we might easily fall into the opposite and equally fallacious 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 conclusion 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 disturbing “social order,” amidst the indifference or servility of a spiritless people, or resorting to policemen 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 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 navigation 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 stage coaches 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 prevent 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 application. 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
cation, not of all, but of any one of the penal substitutes which I have enumerated. And some of these are not simple, or based on a single principle, but comprise an assemblage of co-ordinated reforms, 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 difficult to reach. The first condition of attaining legislative 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 hybridism 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 government, 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
way of platonic and isolated declaration, with no such systematic development as might have given them practical application, based on experimental observations. 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 profound distinction between ordinary prevention and penal substitutes; or in other words, between prevention by police and prevention by society. The former merely seeks to prevent crime when its germ is already 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 repression, 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.”
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 prevention 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, Lombroso, 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 themselves to general synthetic considerations, like Romagnosi 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 punishment 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
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, hereditary or acquired, and by occasional impulses, necessarily 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 last 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 evolution 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
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 compared to an impetuous torrent which ought to be enclosed between the dykes of punishment, lest civilised 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 inundations 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 anthropological data, and still imbued with the old prejudice of social and political artificiality, were at first hurried into a regular mania for legislation, under which every newly observed social phenomenon seemed to demand a special law, regulation, or article in the penal code. Then, as Spencer has said in one of his most brilliant essays, the citizen finds himself in an inextricable network of laws, decrees, regulations and codes, which surround him, support him, fetter and bind him, even before his birth and after his death. For
those whom M. Bordier calls
the gardeners and trussmakers of society, forgetting the natural character of social phenomena, picture society as so much paste, to which the cook may give any form he pleases, whether pie-crust, dumpling, or tart.
Hence we see on all sides, side by side with dogma in the classical sciences of law, economy, and politics, empiricism in the laws themselves. And that is why the practical defects and constant impotence of repression in penal justice are the most eloquent arguments of the experimental school, which extends and strengthens its own theoretical inductions by the practical reforms which it suggests.
A first example of the influence more directly exercised by the new ideas in penal legislation is furnished by the proposal already realised in the penal laws of Holland, Italy, &c., of two parallel systems of punishment by detention–one for the graver and more dangerous crimes, and the other, “simple detention,” or _custodia honesta_ (“as a first-class misdemeanant”), for contraventions, involuntary offences, and crimes not inspired by the baser passions.
Similarly, the enumeration contained in certain codes, as in Spain, and in the old Mancini draft of a penal code in Italy, of the main aggravating and extenuating circumstances common to all crimes and offences, such as the antecedents of the accused, venial or inexcusable passion, repentance and confession of a crime, extent of injury or the like, is only an elementary and empiric form of the biological and psychological classification of criminals.
Thus also the foundation of asylums for the detention of lunatic criminals, in spite of their being acquitted of moral responsibility; the more and more vigorous, but often too empirical measures against the progressive increase of recidivism; the proposed repressive measures as alternatives to short terms of detention; the reaction against the exaggerations of cellular confinement, which I regard as one of the aberrations of the nineteenth century, are all manifest proofs of the more or less avowed and logical influence of the data of criminal biology and sociology on contemporary penal legislation.
These practical reforms, which, when grafted on the old trunk of the classical theories of crime and punishment, are mere arbitrary and misplaced expedients, really represent, when they are logically co-ordinated and completed, the new system of social defence againt{sic} crime, which is based on the scientific data and inductions of the positive school, and which it is therefore necessary for us to trace out from its foundations.
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 practical and daily effect to penal measures, for the defence of society against criminals. For, as I maintained in the Italian Parliament, if the penal code is a code for evil- doers, that of penal procedure is a code
for honest people,
who are placed on their trial but not yet found guilty.
This is all the more true because, if it is possible to have penal codes whose machinery of psychological coercion is planted on a platonic platform of penitentiary systems written out fair in their symmetrical clauses, but still non-existent, as is the case in Italy, this is not possible in regard to penal procedure. The regulations of the code of “instruction” must of necessity be carried out by a judicial routine. The penal code may remain a dead letter, as, for instance, when it says that punishment by detention is to be inflicted in prisons constructed with cells; for, happily, the cells necessary in Italy for fifty or sixty thousand prisoners (or in France for thirty or forty thousand) are too expensive to admit of the observance of these articles of the penal code–which nevertheless have cost so many academic discussions as to the best penitentiary system: “Auburn,” “Philadelphian,” “Irish,” or “progressive.” In the organisation of justice, on the other hand, every legal regulation has its immediate application, and therefore reforms of procedure produce immediate and visible results.
It may be added that, if the slight deterrent influence which it is possible for punishment to exercise depends, with its adaptation to various types of criminals, on the certitude and promptitude of its application, the others depend precisely and solely on the organisation of the police, and of penal procedure.
Passing over special and technical reforms which
even the
classical experts in crime demand in the systems of procedure, and often rather on behalf of the criminals than on behalf of society, we may connect the positive innovations in judicial procedure with these two general principles:–(1) the equal recognition of the rights and guarantees of the prisoner to be tried and of the society which tries him; and (2) the legal sentence, whereof the object is not to define the indeterminable moral culpability of the prisoner, nor the impersonal applicability of an article in the penal code to the crime under consideration; but the application of the law which is most appropriate to the perpetrator of the crime, according to his more or less anti- social characteristics, both physiological and psychological.
From Beccaria onward, penal law developed by reaction against the excessive and arbitrary severity of the Middle Ages–a reaction which led to a progressive decrease of punishments. Similarly official penal procedure in the nineteenth century has been, and continues to be, a reaction against the medival abuses of the
inquisitorial system, in the sense of a progressive increase of individual guarantees against the domination of society.
As we considered it necessary in the interests of social self- defence, in the case of criminal law, to combat the individualist excesses of the classical school, so in regard to penal procedure, whilst admitting the irrevocable guarantees of individual liberty, secured under the old system, we think it necessary to restore the equilibrium between individual and social rights, which has been disturbed
by the many exaggerations of the classical theories, as we will now proceed to show by a few examples.
The presumption of innocence, and therewith the more general rule, “in dubio pro reo,” is certainly based on an actual truth, and is doubtless obligatory during the progress of the trial. Undetected criminals are fortunately a very small minority as compared with honest people; and we must consequently regard every man who is placed on his trial as innocent until the contrary has been proved.
But when proof to the contrary is evident, as, for instance, in the case of a flagrant crime, or of confession confirmed by other elements in the trial, it seems fit that the presumption should cease in view of absolute fact; and especially when we have to do with habitual criminals.
Even the criminals of this class whom I have questioned recognise a presumption of the opposite kind. “They have convicted me,” said an habitual thief, “because they knew I might have done it, without any proof; and they were in the right. You will never be convicted, because you never stole; and if we happen to be innocent once in a way, that must be set against the other times when we are not discovered.” And the ironical smile of several of these prisoners, condemned on circumstantial evidence, reminded me of a provision which was once proposed in the Italian penal code, under which a person surprised in the attempt to commit a crime, if it was not known what precise form his crime would have taken, was to be found guilty of a less serious offence. This might be good for an occasional criminal,
or a criminal of
passion, but would be absurd and dangerous for habitual criminals and old offenders.
The exaggerations of the presumption “in dubio pro reo” are due to a sort of mummification and degeneracy of the legal maxims, whereby propositions based upon observation and generalisation from existing facts continue in force and are mechanically applied after the facts have changed or ceased to exist.
What reason can there be for extending provisional freedom, pending an appeal, to one who has already been found guilty and liable to punishment for a crime or offence, under sentence of a court of first instance? To presume the innocence of every one during the first trial is reasonable; but to persist in a presumption which has been destroyed by facts, after a first condemnation, would be incomprehensible if it were not a manifestly exaggerated outcome of classical and individualist theories, which can only see a “victim of authority” in every accused person, and in every condemned person also.
Another point is that of acquittal in case of an equality of votes, especially where born and habitual criminals are concerned. I think it would be much more reasonable to restore the verdict of “not proven,” which the Romans admitted under the form of “non liquet,” as an alternative to “absolvo” and “condemno,” and which may be delivered by juries in Scotland. Every one who has been put on his trial is entitled to have his innocence declared, it it has been actually proved. But if the proofs remain incomplete, his only right is not to be condemned,
since
his culpability has not been proved. But it is not the duty of society to declare him absolutely innocent, when suspicious circumstances remain. In this case the only logical and just verdict is one of “not proven.” Such a verdict would obliterate the shadow of doubt which rests on persons who have been acquitted, by reason of the identical verdicts in cases of proved innocence and inadequacy of proof, and on the other hand it would avoid the tendency to compromise, under which judges and juries, in place of acquitting when the proof is insufficient, sometimes prefer to convict, but make the punishment lighter.
Another case of exaggeration in the presumption of innocence is afforded by the regulations as to contradictory or irregular verdicts, which may be corrected only when there has been a conviction; whilst if the error has led to the acquittal of an accused person, it cannot be put right. The influence of the individualist and classical school is here manifest, for, as M. Majno says, “the justice of sentences rests as much on just condemnations as upon just acquittals.” If the individual has a right to claim that he shall not be condemned through the mistake or ignorance of his judges, society also has the right to demand that those whose acquittal is equally the result of mistake or ignorance shall not be allowed to go free.
On the same ground of equilibrium between the rights of the individual and the rights of society, which the positive school aims at restoring, something must be said as to the regulation by which, if the
appeal is brought by a condemned person, the punishment cannot be increased. One classical expert in an official position would not even give the right to appeal at all.
Now if appeal is allowed for the purpose of correcting possible mistakes on the part of the original judges, why must we allow this correction in mitigation, and not in increase of punishment? And to this practical assurance of the condemned person that he has nothing to fear from a second trial, which seems to have been given to him for the sole purpose of encouraging him to abuse his power, since appeals are too often a mere dilatory pretext, there is a pendant in the right of the public prosecutor to demand a re- hearing, but only “in the interest of the law, and without prejudice to the person acquitted.”
A last instance of the same kind of protective regulation for the protection of evil-doers is to be found in the new trials which are permitted only in cases where there has been a condemnation, and that on arbitrary and superficial grounds. Most of the classical commentators on procedure do not dream of the possibility of revision in the case of acquittals, and yet, as Majno justly says, “even if he has profited by false witness, forged documents, intimidation or corruption of a judge, or any other offence, the acquitted person calmly enjoys his boast, and can even plume himself on his own share in the business without fear of being put on his trial again.” The Austrian and German codes of procedure admit revision in cases of acquittal; and the positive rule in this connection ought to be that a case should be
re-heard when the sentence of condemnation or acquittal is evidently erroneous.
From the same principle of equality between the guarantees of the individual criminal and of honest society we infer the necessity of greater strictness in the idemnification of the victims of crime. For the platonic damages now added to all sorts of sentences, but nearly always ineffectual, we believe that a strict obligation ought to be substituted, the operation of which should be superintended by the State, in the same way as the other consequence of the crime, which is called the punishment. I will return to this when I trace the outline of the positive system of social defence against criminals.
The positive school, precisely because it aims at an equilibrium between individual and social rights, is not content with taking the part of society against the individual. It also takes the part of the individual against society.
In the first place, the very reforms which we propose for the indemnification of the victims of crime, regarded as a social function, as well as the operation of the punishment, have an individualist character. The individualism of the classical school was not even complete as a matter of fact; for the guarantees which it proposed took account of the individual criminal only, and did not touch his victims, who are also individuals, and far more worthy of sympathy and protection.
But, beyond this, we may point to three reforms as an instance of the positive and reasonable guarantees of the individual against the abuse or the defects of
social authority. Of these
reforms two have been put forward by the classical school also, but, like criminal lunatic asylums, alternatives for short terms of imprisonment, and so on, they have generally remained inoperative, for they are not in harmony with the bulk of traditional theory, and only in a positive system have they any organic and efficacious connection with the data of criminal sociology. I refer to the exercise of popular opinion, the correction of judicial mistakes, and the transfer of sundry punishable offences to the category of civil contraventions.
The institution of a Ministry of Justice corresponds to the demands of general sociology, which exacts division of labour even in collective organisms, and to those of criminal sociology, which requires a special and distinct organ for the social function of defence against crime. Indeed it has become indispensable as a necessary judicial organ, even in nations like England which have not yet formally established it. So that, far from confounding the Public Prosecutor with the judicial body, we see the necessity of giving to this office a more elevated character and a distinct personality, with ampler guarantees of independence of the executive power.
Nevertheless the action of the Ministry of Justice, as now commonly organised, may be inadequate for the protection of the victims of crime, either indirectly through the insufficient number of its functionaries, or directly, through the functional defect insisted on by M. Gneist, “party spirit or prejudice in favour of the governing powers.” The latter, indeed, 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 particular case. There is no necessity for anything beyond the conservative spirit natural to every institution of the State, or the principle of authority which is a special form of it, apart from the less respectable motives of interested subservience to such as are in office and dispense promotion.
Hence it will be useful, in initiating criminal proceedings, to add to the action of a Public Prosecutor (but not to substitute for him) the action of private persons.
Criminal proceedings by citizens may take two forms, according as they are put in operation only by the injured person or by any individual.
The first mode, already allowed in every civilised nation, needs amendment in various ways, especially in regard to the subordination of the penal action to the plaint of the injured person, which ought to be restrained, and even abolished. In fact, whereas this right has hitherto been regulated by law only in view of the legal and material gravity of the offence, it should in future be made to depend on the perversity of the offender; for society has a much greater interest in defending itself against the author of a slight offence if he is a born criminal or a criminal lunatic, than in defending itself against the author of a more serious crime, if he is an occasional criminal or a criminal of passion. And the necessity of bringing a private action in regard to certain offences
is only a
source of abuses, and of demoralising bargains between offenders and injured persons.
On the other hand, this prosecution by a citizen who has been injured by a crime or an offence ought to have more efficacious guarantees, either for the exercise of the rights of the injured person, or against the possible neglect or abuse of the Public Prosecutor. If, indeed, he is obliged to take up every charge and action, he is also (in Italy and France, but not in Austria or Germany, for instance) the only authority as to penal actions, and consequently as to penal judgments.
In Italy, out of 264,038 cases which came before the Public Prosecutor in 1880, six per cent., or 16,058, were “entered on the records,” or, in other words, they were not followed up; and in 1889, out of a total of 271,279, the number of unprosecuted cases was 27,086, or ten per cent. That is, the number had almost doubled in ten years.
In France the annual average of plaints, charges, and trials with which the Public Prosecutor was concerned stood at 114,181 in the years 1831-5; at 371,910 in 1876-80; and at 459,319 in 1887. And the cases not proceeded with were 34,643, or thirty per cent., in 1831-5; 181,511, or forty-eight per cent., in 1876-80; and 239,061, or fifty-two per cent., in 1887. That is to say, their actual and relative numbers mere nearly doubled in fifty years.
Is it possible that in ten, or even in fifty years, the moral conditions of a nation, and its inclination to bring criminal charges, should be so modified that the number of cases devoid of foundation should have
been almost doubled? It is certain that in different nations and different provinces there are varying degrees of readiness to bring charges against lawbreakers rather than to take personal vengeance. But in one and the same nation this vindictive spirit and this readiness to bring charges cannot vary so greatly and rapidly, especially within ten years, as in Italy; for the persistence of popular sentiment is a well- known fact. It is rather in the disposition of the functionaries of the Ministry of Justice, which is far more variable, that we must look for an explanation of this fact, which is also accounted for by the tendency to diminish the statistical records of crime.
Now, why must the citizen who lodges a complaint of what he considers a crime or offence submit to the decision of the Public Prosecutor, who has allowed his action to drop? This consideration has led to the subsidiary penal action, already allowed in Germany and Austria, and introduced in the draft codes of procedure in Hungary, Belgium, and France, which is a genuine guarantee of the individual as against the social authority. We must not, however, deceive ourselves as to the efficacy or frequency of its operation, especially in the Latin nations, which have none too much individual initiative.
The second form of private prosecution is that of the “popular punitive action,” which existed in the Roman penal law–which, it may be said in passing, is not so insignificant as the classical school has supposed. The statement of M. Carrara, too often repeated, that “The Romans, who were giants in civil law, are pigmies in penal law,” is not in my
opinion correct. It
is true that the Roman penal law was not organised in a philosophical system; but it exhibits throughout the wonderfully practical judgment of the Roman jurisconsults; and indeed one cannot see why they should have lost this sense when dealing with crimes and punishments. On the other hand, I am inclined to think that the importance of the Roman civil law has been exaggerated, and that the spirit of the _corpus juris_ springs from social and economic conditions so different from our own that we can no longer feel bound to submit to its tyranny. The penal law of the Romans, however, contains several maxims based on unquestionable common sense, which deserve to be rescued from the oblivion to which they have been condemned by the dogmatism of the classical school. Examples of these are the popular punitive action; the distinction between _dolus bonus_ and _dolus malus_, which belongs to the theory of motives; the stress laid upon intentions rather than upon their actual outcome; the law of _exceptio veritatis_ in cases of slander, which under the pharisaism of the classical theory serves only to give immunity to knaves; the penalty of twofold or threefold restitution for theft, in place of a few days or weeks in prison; the condemnation of the most hardened criminals to the mines, instead of providing them with cells, as comfortable as they are ineffectual–apart from the consideration that the firedamp in mines and the unhealthiness of penal settlements would be less mischievous if their victims were the most dangerous criminals rather than honest miners and husbandmen.
To return to the popular penal action, it is so com
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 associations, and the abuse of public authority. But I consider that this action would be a necessary guarantee, in the case of all crimes and offences, for a reasonable and definite adjustment of the rights of the individual and of society.
Another reform, tending to a more effective guarantee of individual rights, is the revision of judicial errors in the interests of all who are unjustly condemned or prosecuted. Such a reform has been advocated also by several members of the classical school; but it seemed only too likely to remain with them a mere benevolent expression of opinion; for it can only be carried into effect by curtailing imprisonment, and by a more frequent and stringent infliction of fines, as advocated by the positive school.
Sanctioned in some special cases, as an exceptional measure–as, for instance, in the last century by the Parliament of Toulouse, and in our age by the English Parliament–compensation for judicial errors was rendered necessary in France at the end of the eighteenth century, after a series of unjust condemnations, even death sentences, which led Voltaire and Beccaria to demand the abolition of capital punishment. In 1781 the Society of Art and Literature at Ch<a^>lonssur-Marne offered a prize for an essay on the subject, and awarded it to Brissot de Warville, for his work, </a^>
“Le Sang Innocent Veng<e’>.” In the records of the
<e’>tats G<e’>n<e’>raux there were many votes in favour of this reform, which Louis XVI. caused to be introduced on May 8, 1788. In 1790 Duport brought in a measure in the Constituent Assembly; but it was rejected after a short discussion in February, 1791, during which the same practical objections were urged as have been repeated up to the present time. Nevertheless, the Convention decreed special indemnities, as, for instance. a thousand francs in 1793 for one Busset, “for arbitrary imprisonment and prosecution.” In 1823 the above-named Society at Ch<a^>lonssur-
Marne proposed the same subject for an essay; and it has been the object of sundry proposals, all rejected, as in 1867 during the discussion on criminal appeals, on amendments moved by Jules Favre, Richard, and Ollivier; and again in 1883 by D<e’>put<e’>
Pieyre, and in 1890 by D<e’>put<e’> Reinach.</e’></e’></e’></e’></a^></e’></e’></e’></e’>
This reform has been advocated by Necker, amongst other writers, in his memoir on “Financial Administration in France,” and by Pastoret, Voltaire, Bentham, Merlin, Legraverend, H<e’>lie,
Tissot, and more comprehensively by Marsangy in his “Reform of the Criminal Law” (1864). Marsangy advocated many other practical reforms which have since been adopted, in substitution for the objectionable short terms of imprisonment. More recently the subject has been treated in France by the magistrates Bernard, Pascaud, Nicolas, Giacobbi, and by the Attorney-Generals Molines, Jourdan, Houssard, Dupry, Bujard, in their inaugural addresses.</e’>
In Italy there was a notable precedent for this
reform in
the Treasury of Fines, established for Tuscany in 1786, and for the kingdom of the Two Sicilies in the penal code of 1819, for the purpose of creating a fund for compensation in cases of judicial error. In 1886 Deputy Pavesi brought in a measure which was not discussed; and this indemnification, which had already been proposed in 1873 by De Falco, keeper of the seals, in his draft of an Italian penal code, was not included in subsequent Bills, mainly on account of the financial difficulties. Amongst writers on criminology, it was advocated in Italy by Carrara, Pessina, and Brusa; in Germany by Geyer and Schwarze; in Belgium by Prins and others, and more recently by M. Garofalo, in his report to the third National Congress on Law, at Florence, in September, 1891.
Amongst existing laws, indemnification for judicial errors, whether limited to cases in which the innocence of condemned persons can be proved, or extended to persons wrongfully prosecuted, is included in the penal codes of Hungary and Mexico, and by special laws in Portugal (1884), Sweden (1886), Denmark (1888), and especially in Switzerland, in the cantons of Fribourg, Vaud, Neuch<a^>tel, Geneva, B<a^>le, and Berne.</a^></a^>
The legal principle that the State ought to indemnify material and moral injury inflicted by its functionaries, through malice or negligence, on a citizen who has done nothing to subject himself to prosecution or condemnation, cannot be seriously contested. But the whole difficulty is reduced to deciding in what cases the right to indemnification ought to be
recognised, and then
to providing a fund out of which the State can discharge this duty.
For the latter purpose it would be necessary to include an adequate sum in the Budget. This was done in Bavaria, in 1888, by setting apart 5,000 marks annually; and the first who profited by this provision received a pension of 300 marks per annum, after being rendered incapable of work by seven years’ imprisonment for a crime which he had not committed. But if the policy of retrenchment imposed on the European States by their insane military expenditure and their chronic wars prevents the carrying out of this proposal, there is the Italian precedent of the Treasury of Fines, which, with the fines inflicted, or which ought to be inflicted on convicted persons, and the product of prison labour, would provide the necessary amount for the indemnities which the State ought to pay to innocent persons who have been condemned or prosecuted, as well as to the victims of offences.
As for the cases in which a right to indemnification for judicial errors ought to be acknowledged, it seems to me evident in the first place that we must include those of convicted persons found to be innocent on a revision of the sentence. Amongst persons wrongfully prosecuted, I think an indemnity is due to those who have been acquitted because their action was neither a crime nor an offence, or because they had no part in the action (whence also follows the necessity of verdicts of Not Proven, so as to distinguish cases of acquittal on the ground of proved innocence)–always provided that the prosecuted persons have not given a reasonable pretext for their trial by their
own
conduct, or their previous relapse, or their habitual criminality. The third proposition of the positive school in regard to individual guarantees, which was also advanced by M. Puglia, is connected with reform of the penal code, and especially with the more effectual indemnification of the victims of crime. The object is to prune the long and constantly increasing list of crimes, offences, and contraventions of all acts which result in slight injury, committed by occasional offenders, or “pseudo- criminals”–that is, by normal persons acting merely with negligence or imprudence.
In these cases the personal and social injury is not caused maliciously, and the agent is not dangerous, so that imprisonment is more than ever inappropriate, unjust, and even dangerous in its consequences. Deeds of this kind ought to be eliminated from the penal code, and to be regarded merely as civil offences, as __*simple__ theft was by the Romans; for a strict indemnification will be for the authors of these deeds a more effectual and at the same time a less demoralising and dangerous vindication of the law than the grotesque condemnation to a few days or weeks in prison. It will be understood that the classical theory of absolute and eternal justice cannot concern itself with these trifles, which, nevertheless, constitute two-thirds of our daily social and judicial existence; for, according to this theory, there is always an offence to be visited with a proportionate punishment, just as with a murder, or a highway robbery, or a slanderous word.
But for the positive school, which realises the actual and practical conditions of social and punitive justice, there is on the other hand an evident need of relieving the codes, tribunals, and prisons from these microbes of the criminal world, by excluding all punishments by imprisonment for what Venturi and Turati happily describe as the atomic particles of crime, and by relaxing in some degree that monstrous network of prohibitions and punishments which is so inflexible for petty transgressors and offenders, but so elastic for serious evil-doers.
II.
The reforms which we propose in punitive law are based on the fundamental principle already established on the data of anthropology and criminal statistics.
If the ethical idea of punishment as a retribution for crime be excluded from the repressive function of society, and if we regard this function simply as a defensive power acting through law, penal justice can no longer be squared with a minute computation of the moral responsibility or culpability of the criminal. It can have no other end than to prove, first, that the person under trial is the author of the crime, and, then, to which type of criminals he belongs, and, as a consequence, what degree of anti-social depravity and re-adaptability is indicated by his physical and mental qualities.
The first and fundamental inquiry in every criminal
trial
will always be the verification of the crime and the identification of the criminal.
But when the connection of the accused and the crime is once established, either the accused produces evidence of his honesty, or of the uprightness of his motives–the only case in which his acquittal can be demanded or taken into consideration–or else it is proved that his motives were anti-social and unlawful, and then there is no place for those grotesque and often insincere contests between the prosecution and the defence to prevent or to secure an acquittal, which will be impossible whatever may be the psychological conditions of the criminal. The one and only possible issue between the prosecution and the defence will be to determine, by the character–of the accused and of his action, to what anthropological class he belongs, whether he is a born criminal, or mad, or an habitual or occasional criminal, or a criminal of passion.
In this case we shall have no more of those combats of craft, manipulations, declamations, and legal devices, which make every criminal trial a game of chance, destroying public confidence in the administration of justice, a sort of spider’s web which catches flies and lets the wasps escape.
The crime will always be the object of punitive law, even under the positive system of procedure; but, instead of being the exclusive concern of the judge it will only be the ground of procedure, and one symptom amongst others of the depravation and re-adaptability of the criminal, who will himself be the true and living subject of the trial. As it is, the whole
trial is
developed from the material fact; and the whole concern of the judge is to give it a legal definition, so that the criminal is always in the background, regarded merely as the ultimate billet for a legal decision, in accordance with some particular article in the penal code–except that the actual observance of this article is at the mercy of a thousand accidents of which the judge knows nothing, and which are all foreign to the crime, and to the criminal.
If we rid ourselves of the assumption that we can measure the moral culpability of the accused, the whole process of a criminal trial consists in the assemblage of facts, the discussion, and the decision upon the evidence. For the classical school, on the other hand, such a trial has been regarded as a succession of guarantees for the individual against society, and, by a sort of reaction against the methods of legal proof, has been made to turn upon the private conviction, not to say the intuition, of the judge and counsel.
A criminal trial ought to retrace the path of the crime itself, passing backward from the criminal action (a violation of the law), in order to discover the criminal, and, in the psychological domain, to establish the determining motives and the anthropological type. Hence arises the necessity for the positive school of reconsidering the testimony in a criminal case, so as to give it its full importance, and to reinforce it with the data and inferences not only of ordinary psychology, as the classical school has always done (Pagano for instance, and Bentham, Mitter
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 (prosecution and defence), and decision upon evidence (judges and juries).
It is evident in the first place, as I remarked in the first edition of this work, and as Righini, Garofalo, Lombroso, Alongi, and Rossi have confirmed, that a study of the anthropological factors of crime provides the guardians and administrators of the law with new and more certain methods in the detection of the guilty. Tattooing, anthropometry, physiognomy, physical and mental conditions, records of sensibility, reflex activity, vaso- motor reactions, the range of sight, the data of criminal statistics, facilitate and complete the amassing of evidence, personal identification, and hints as to the capacity to commit any particular crime; and they will frequently suffice to give police agents and examining magistrates a scientific guidance in their inquiries, which now depend entirely on their individual acuteness and mental sagacity.
And when we remember the enormous number of crimes and offences which are not punished, for lack or inadequacy of evidence, and the frequency of trials which are based solely on circumstantial hints, it is easy to see the practical utility of the primary connection between criminal sociology and penal procedure.
The practical application of anthropometry to the identification of criminals, and to the question of recidivism, which was begun in Paris by M. Bertillon, and subsequently adopted by almost all the states of Europe and America, is too familiar to need description. It will be sufficient to recall the modifications of Bertillon’s system by Anfosso, with the actual collection of anthropometric data, and their inclusion in the ordinary records of justice.
Thus the sphygmographic data on the circulation of the blood, which reveal the inner emotions, in spite of an outward appearance of calm or indifference, have already served to show that a person accused of theft was not guilty of it, but that he was on the contrary guilty of another theft, of which he had not been so much as suspected. On another occasion they established the innocence of a man condemned to death. We shall have more speaking and frequent illustrations when these inquiries have been placed regularly at the service of criminal justice.
The sphygmograph may also be useful in the diagnosis of simulated disease, after the example set M. Voisin in the case of a sham epileptic in Paris, “whose sphygmographic lines have no resemblance to those of true epileptics before and after a fit, and <168>only resemble those produced by normal persons after a violent gesticulation.”
As for the possible utilisation of hypnotism, we must be cautious before we draw any legal conclusions from it; but it cannot be questioned that this is a valuable source of scientific aid in the systematic collection of criminal evidence.
But, for the present, the most certain and profitable aids in the collection of evidence are those afforded by the organic and psychical characteristics of criminals. In my study on homicide I reckoned up many psychological and psycho-pathological symptoms which characterise the murderer, the homicidal madman, and the homicide through passion. And in my professional practice I have often found by experience that there is a great suggestive efficacy in these psychological symptoms in regard to the conduct of a criminal, before, during, and after a crime; and it is important to bring this knowledge scientifically before detectives and judges.
These data are not applicable to accused persons exclusively. When we remember the enormous importance of oral evidence in the chain of criminal proof, and the rough traditional empiricism of the criteria of credibility, which are daily applied in all trials to all kinds of witnesses, by men who regard them, like the prisoners, as an average abstract type–excluding only the definite cases of inability to give evidence, which are defined beforehand with as much method as the cases of irresponsibility– the necessity of calling in the aid of scientific psychology and psycho-pathology is manifest.
For instance, not to dwell on the absurd violation of these traditional criteria of credibility, when police officers are admitted as witnesses (often the only witnesses) of resistance to authority or violence, wherein they are doubly interested parties, how often in our courts do we give a thought to the casual imaginations or credulity of children, women, weak-nerved or hysterical persons, and so on? Counsel for defence or prosecution who desired to know if any particular witness is or is not hysterical would bring a smile to the face of the judge, very learned, no doubt, in Roman law or legal precedents, but certainly ignorant in physiology, psychology, and psycho-pathology. Yet the tendency to slander in hysterical cases, which M. Ceneri urged so eloquently in a celebrated trial or the tendency to untruth in children, which M. Motet has ably illustrated, are but manifest and simple examples of this applicability of normal, criminal, and pathological psychology to the credibility of witnesses. And, under its influence, how much of the clear atmosphere of humanity will stimulate our courts of justice, which are still too much isolated from the world and from human life, where, nevertheless, prisoners and witnesses come, and too often come again, living phantoms whom the judges know not, and only see confusedly through the thick mist of legal maxims, and articles of the code, and criminal procedure.
Apart from these examples, which prove the importance of what M. Sarraute justly called “judicial applications of criminal sociology,” the fundamental reform needed in the scientific preparation of criminal
evidence is the creation of
magisterial experts in every court of preliminary inquiry. In a question of forgery, poisoning, or abortion, the judge has recourse to experts in handwriting, chemistry, or obstetrics; but beyond these technical, special, and less frequent cases, in every criminal trial the basis of inquiry is or ought to be formed by the data of criminal biology, psychology, and psycho-pathology. So that, over and above the knowledge of these sciences which is necessary to judges, magistrates, and police officers, it is most important that an expert, or several experts in criminal anthropology should be attached to every court of criminal inquiry.
This would provide us with an anthropological classification, certain and speedy, of every convicted person, as well as a legal classification of the material fact, and we should avoid the scandal of what are known as experts for the prosecution and experts for the defence. There should be but one finding of experts, either by agreement between them or by a scientific reference to arbitration, as in the German, Austrian, and Russian system; and over this finding the judges and the litigants should have no other power than to call for explanations from the chief of the experts.
In this way we should further avoid the scandal of judges entirely ignorant of the elementary ideas of criminal biology, psychology, and psycho-pathology, like the president of an assize court whom I heard telling a jury that he was unable to say why an expert “wanted to examine the feet of a prisoner in order to come to a decision about his head.” This president,
who was an
excellent magistrate and a learned jurist was wholly unacquainted with the elements of the theory of degeneracy, like one of his colleagues whom I heard saying, when the expert spoke of the abnormal shape of the ears of a prisoner (in accord with the inquiries of Morel and Lombroso), “That depends on how the hat is worn.”
For in consequence of the assumption, made by Kant amongst others, that questions of mental disease belong to the philosopher rather than to the physician, and of the absurd and shallow idea which superficial persons entertain of those who are insane, picturing them as constantly raving, the judge or juryman who pins his faith to an expert in handwriting thinks himself above the necessity of taking the opinion of an expert in insanity.
It must be recognised, however, that this foolish assumption is partly due to a reasonable anxiety for the public safety, under the sway of the classical theories, which allow the acquittal and discharge of criminals who are found to be of unsound mind. It will eventually disappear, either by the wider diffusion of elementary ideas of psycho-pathology or by the application of positive theories, which are far from carrying the proved insanity of a prisoner to the dangerous and absurd conclusion of his acquittal.
After the first stage of the collection of evidence, during which we can admit the legal representation of the accused, especially for the sake of eliciting both sides of the question, without, however, going so far as the individual exaggerations of complete publicity for the preliminary inquiry, we come to the second
stage of procedure, that of the public discussion of the evidence.
The principals in this discussion represent the prosecution (public or private) and the defence; and for these, as I cannot go into great detail, I will only mention one necessary reform. That is the institution of a sort of public defence, by a legal officer such as used to be found in certain of the Italian provinces, under the title of “advocate of the poor,” who ought to be on a par with the public prosecutor, and to be substituted for the present institution of the official defence, which is a complete failure.
As for the actual discussion of evidence, when we have established the scientific rules of evidence, based upon expert acquaintance with criminal anthropology, and when we have eliminated all verbal contention over the precise measure of moral responsibility in the prisoner, the whole debate will be a criticism of the personal and material indications, of the determining motives, and the anthropological category to which the accused belongs, and of the consequent form of social defence best adapted to his physical and psychical character.
The practical conclusion of the criminal trial is arrived at in the third stage, that of the decision on the evidence.
So far as we are concerned, the criminal adjudication has the simple quality of a scientific inquiry, subjective and objective, in regard to the accused as a possible criminal, and in relation to the deed of which he is alleged to be the author. We naturally therefore require in the judge certain scientific
knowledge, and not merely the intuition of common sense.
But as the consultation of the jury, by reason of its inseparable political aspect, must take place in private, we can only insist on the fundamental reform of the judicial organisation, which alone can realise the scientific principle of criminal adjudication. It was Garofalo who, in the earlier days of the positive school, urged that civil and criminal judges ought to be wholly distinct, and that the latter ought to be versed in anthropology, statistics, and criminal sociology, rather than in Roman law, legal history, and the like, which throw no light on the judgment of the criminal.
Learned jurists, proficient in the civil law, are least fit to make a criminal judge, accustomed as they are by their studies to abstractions of humanity, looking solely to the juridical bearings, inasmuch as civil law is mostly ignorant of all that concerns the physical and moral nature of individuals. The demoralisation or uprightness of a creditor, for instance, has no influence for or against the validity of his credit.
The jurist, therefore, in a matter of criminal adjudication, entirely loses sight of the personal conditions of the accused, and the social conditions of the community, and confines his attention to the deed, and to the maxims of a so-called retributive justice. They who are called upon to try criminals ought to possess the ideas necessary to the natural study of a criminal man, and should therefore constitute an order of magistrates wholly distinct from that of civil judges.
The practical means of securing this fundamental reform of the judicial bench ought to begin with the organisation of the university, for in the courses of the faculty of law it will be necessary to introduce a more vigorous and modern stream of social and anthropological studies, which must also eventually put new life into the ancient maxims of the civil law.
In the second place, law students at the university ought to be admitted to what Ellero called a science of clinical criminology, that is to interviews with and systematic observations of prisoners. The first Congress of Criminal Anthropology approved the proposal of M. Tarde, upon the following motion of Moleschot- Ferri:–“The Congress, in agreement with the scientific tendency of criminal anthropology, is of opinion that prison authorities, whilst taking necessary precautions for internal discipline, and for the individual rights of condemned prisoners, should admit to the clinical study of criminals all professors and students of penal law and legal medicine, under the direction and responsibility of their own professors, and if possible in the character of societies for the aid of actual and discharged prisoners.”
Lastly, a special school should be founded for policemen and prison warders, with the object of securing detectives distinguished not only for their personal ability, but also for their knowledge of criminal biology and psychology.
To these reforms, which guarantee the scientific capacity of the criminal judge, we must add reforms which would secure his complete independence of
the executive authority, which is
now the only authority responsible for the advancement and allocation of judges. But this independence would not be exempt from every kind of control, such as public opinion, and disciplinary authority to some extent distinct from the _personnel_ of the bench; for otherwise the judicial authority would soon become another form of insupportable tyranny.
The most effectual mode of securing the independence of the judges is to improve their position in life. For admitting that a fixed stipend, payable every month, makes a man content with a somewhat lower figure, still it is certain that in these days, with a few honourable exceptions, the selection of judges is not satisfactory, because low salaries only attract such as could not earn more by the practice of their profession.
The personal character of the bench vitally affects the quality of the government as a whole. The most academic and exalted codes are of little avail if there are not good judges to administer them; but with good judges it matters little if the codes or statutes are imperfect.
In criminal law the application of the statute to the particular case is not, or should not be, a mere question of legal and abstract logic, as it is in civil law. It involves the adaptation of an abstract rule, in a psychological sense, to a living and breathing man; for the criminal judge cannot separate himself from the environment and social life, so as to become a more or less mechanical _lex loquens_. The living and human tests of every criminal sentence reside in
the conditions of the act, the
author, and reacting society, far more than in the written law.
Herein we have an opportunity of solving the old question of the authority of the judge, wherein we have gone from one excess to another, from the unbounded authority of the Middle Ages to the Baconian aphorism respecting the law and the judge, according to which the law is excellent when it leaves least to the judge, and the judge is excellent when he leaves himself the least independent judgment.
If the function of the criminal judge were always to be, as it is now, an illusory and quantitative inquiry into the moral culpability of the accused, with the equally quantitative and Byzantine rules on attempt, complicity, competing crimes, and so forth–that is to say, if the law were to be applied to the crime and not to the criminal, then it is necessary that the authority of the judge should be restrained within the numerical barriers of articles of the code, of so many years, months, and days of imprisonment to be dosed out, just as the Chinese law decides with much exactitude the length and diameter of the bamboo rods, which in the penal system of the Celestial Empire have the same prominence as penitentiary cells have with us.
But if a criminal trial ought to be, on the other hand, a physio- psychological examination of the accused, the crime being relegated to the second line, as far as punishment is concerned, the criminal being kept in the front, then it is clear that the penal code should be limited to a few general rules on the modes of defence and social sanction, and on the constituent
elements of every crime and offence, whilst the judge should have greater liberty, controlled by the scientific and positive data of the trial, so that he may judge the man before him with a knowledge of humanity.
The unfettered authority of the judge is inadmissible in regard to the forms of procedure, which for the prosecuted citizen are an actual guarantee against judicial errors and surprises, but which should be carefully distinguished from that hollow and superstitious formalism which generates the most grotesque inanities, such as an error of a word in the oath taken by witnesses or experts, or a blot of ink on the signature of a clerk.
III.
Scientific knowledge of criminals and of crime, not only as the deed which preceded the trial, but also as a natural and social phenomenon–this, then, is the fundamental principle of every reform in the judicial order; and this, too, is a condemnation of the jury. Whilst Brusa, one of the most doctrinaire of the Italian classical school, foretold a steady decline of the “technical element” in the magistracy, and consequently a persistent intervention of the popular influence in the administration of justice, the positive school, on the other hand, has always predicted the inevitable decline of the jury in the trial of crimes and ordinary offences.[16]
[16] It is interesting to observe that Carrara, in spite of his public advocacy of the jury, wrote in a private letter in 1870 (published on
the unveiling of his monument at Lucca):–“I expressed my opinion as to the jury in 1841, in an article published in the _Annals of Tuscan Jurisprudence_–namely, that criminal justice was becoming a lottery. Justice is being deprived of her scales and provided with a dice-box. This seems to me to be the capital defect of the jury. All other defects might be eliminated by a good law, but this one is inseparable from the jury. . . . Even amongst magistrates we may find the harsh and the clement; but in the main they judge according to legal argument, and one can always more or less foresee the issue of a trial{.??} But with juries all forecast is rash and deceptive. They decide by sentiment; and what is there more vague and fickle than sentiment{. .??} . . With juries, craft is more serviceable to an advocate than knowledge. I once had to defend a husband who had killed his wife’s lover in a caf<e’>. I
challenged the bachelors on the jury, and accepted the married men. After that, I was sure of success, and I succeeded. . . . This is the real essential vice of the jury, which no legislative measure could overcome.”</e’>
Theodore Jouffroy, after listening at the University of Pisa to a lecture by Carmignani against the jury, said, “You are defending logic, but slaying liberty.”
Apart from the question whether liberty is possible without logic, it is nevertheless a fact that there is always a prominent political character in the jury. This accounts for the more or less declamatory defences of this judicial institution, which is no favourite with the criminal sociologist.
At the end of the eighteenth century, when there was a scientific and legislative tendency towards the creation of an independent order of magistrates, the French Revolution, mistrusting the whole aristocracy and social caste, opposed this tendency, believing enthusiastically in the omnipotence and omniscience of the people, and instituted the jury. And whilst in the political order it was inspired by classical antiquity, in the order of justice it adopted this institution from England. The jury was not 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 substituted the common sense and good will of the people for the cold dogmatism of the lawyers, penetrated as they were by class prejudices. From this point of view the jury was too much in accord with the general tendency of the ideas of the day not to be greedily adopted. It was another example of the close connection between philosophic ideas, political institutions, and the judicial organisation.
The jury, transported to the Continent, in spite of the improvements recorded by Bergasse in his report to the Constituent Assembly, on August 14, 1789, was a mere counterfeit of that which it was, and is, in England. But its political character is still so attractive that it has many supporters to this day, though the results of its employment in various countries are not very happy.
Yet, as the jury is a legal institution, we must consider its advantages and defects, both from the political and from the legal point of view, and accept the conclusion forced upon us by the predominance of one or the other.
From the political standpoint, it is unquestionable that the jury is a concession to popular sovereignty; for it is admitted that the power of the law not only originates with the people, but is also directly exercised by them.
The jury may also be a guarantee of civic and political liberties as against the abuses of government, which are far more easy with a small number of judges, more or less subordinate to the government.
Again, the jury may be a means of affirming the sentiment of equality amongst citizens, each of whom may to-morrow become a judge of his equals, and of spreading political education, with a practical knowledge of the law. It is true that, with this knowledge of the law, juries also learn the details of every kind of crime, without the equally constant evidence of virtuous actions; and there is here a danger of moral contagion from crime. But, from the political point of view, it is certain that the jury may awaken, with a knowledge of the law, a consciousness of civic duties, which are too frequently undertaken as a forced and troublesome burden.
On these political advantages of the jury, however, a few remarks may be made.
In the first place, the concession to popular sovereignty is reduced to very small proportions by the limitations of the jury list, and of the functions of the jury, which legislation in every country is compelled to impose.
The essential characteristic distinguishing the jury from the judge is especially marked by the origin of their authority; for the jury is a judge simply because he is a citizen, whilst the magistrate is a judge only by popular election or appointment by the head of the State. So that any one who has entered on his civil and political rights, and is of the necessary age,
ought, according to the spirit of the institution, to administer justice on every civil or criminal question, whatever its importance, and not only in giving the final verdict, but also in conducting the trial. Yet not only is the ancient trial by popular assemblies impossible in the great States of our day, but also faith in the omniscience of the people has not availed to prevent all kinds of limitations in the principle of the jury. Thus the political principle of the jury is such that it cannot be realised without misapprehension, limitation, and depreciation.
In fact, even in England, where the jury can of its own motion declare in the verdict its opinions, strictures, and suggestions of reform, as arising out of the trial, it is always subject to the guidance of the judge, and it is not employed in the less serious and most numerous cases, on which the whole decision is left to magistrates, who apparently are not to be trusted to decide upon crimes of a graver kind.
And as for the other political advantages of the jury, experience shows us that the jury is often more injurious than serviceable to liberty.
In the first place, in continental States the jury is but an institution artificially grafted, by a stroke of the pen, on the organism of the law, and has no vital connection or common roots with this and other social organisms, as it has in England. Also the example of classical antiquity is opposed to the institution of the jury, which has been imposed upon us by eager imitation and political symmetry; for if the jury had disappeared amongst continental nations, this simply means that it did not find in the ethnic
types, the manners and customs, the physical and social environments of these nations, an adequate supply of