No More Learning

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 cafe. I
challenged the bachelors on the jury, and accepted the married
men. After that, I was sure of success, and I succeeded. . . .
This is the real essential vice of the jury, which no legislative
measure could overcome. ''



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
unknown 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
vitality, such as it has retained, for instance through so many
historical changes, amongst the Anglo-Saxons.

And if sometimes the jury can withstand the abuses of government,
still too frequently it does not withstand its own passions, or
the influence of the social class (the bourgeoisie in our own
day), to which nearly all juries belong. It is notorious, in
fact, that the jury is more rigorous in regard to prisoners
accused of crimes against property than in regard to those accused
of crimes against the person, especially crimes instigated by
personal motives such as hate, vengeance, or the like; for every
juryman thinks that he himself might be a victim of the exploits
of a thief, or the attacks of a murderer for the sake of gain;
whereas there is less reason to fear a murder provoked by
vengeance, an outrage, an embezzlement of public money, or the
like. And Machiavelli said that men would rather have blood
drawn from their veins than money from their pockets.

Besides, the same jury which will resist pressure from the
Government does not resist popular pressure, direct or indirect,
especially in view of the secrecy of their individual votes. No
doubt there are noble exceptions; but society is made up of
average virtues, and only upon them can it count. [17]


[17] In Dublin, for the trial of the murderers of Burke and Lord
Frederick Cavendish, in 1883, the empanelling of the jury was very
difficult, for nobody was willing to expose himself to the
vengeance of the fanatics.


And when it is continually asserted, in the words of
Jouffroy, that the jury is an outpost of liberty, or in those of
Carrara, that it is its necessary complement, we have to remark
that this would be true if the jury were instituted by a despotic
government; but when popular liberties have far more effectual
guarantees in the political organisation of the State, then this
quality of the jury is more apparent than real.

In fine, either the government is despotic, and then juries are
not strong enough to preserve liberty, as in England from the time
of Henry VIII. to that of James II. ; or, as Mittermaier said,
``when authority is corrupt, and the judge is cowardly or
terrorised, a jury cannot assist in the defence of liberty. '' Or
else the government is liberal, and then the judges also are
independent, so that there is no need of juries, especially with
the guarantees of their independence which I have already
indicated.

Now history reminds us that the jury is never instituted by
despotic governments. It was refused, for instance, in upper
Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in
Lombardy by Austria in 1849, and in our own day in Russia, for
political crimes, though it is allowed for ordinary crimes.

Thus the jury, as a political and liberal institution, is oddly
destined to be excluded when it would be serviceable, and to be
useless when it is admitted. It reminds us of the destiny of the
National Guard.

But, even in England, the jury is regarded as especially a legal
institution; and the main qualities attributed to it in this
connection are moral judgment and private conviction.

The law, we are told, has always a certain harshness and
insufficiency, for it ought to provide for the future whilst
grounding itself on the past, whereas it cannot foresee all
possible cases. Progress is so rapid and manifold, in modern
society, that penal laws cannot keep pace with it, even though
they are frequently recast--as for instance in Bavaria, which in
one century has had three penal codes, and in France, where an
almost daily accumulation of special laws is piled upon the
original text of the most ancient code in Europe.

The jury, by its moral judgment, corresponding in some degree to
the equity of the ancients, is able to correct the summum jus
with verdicts superior to the written law. And, in addition, the
jury always follows its private conviction, the inspiration of
sentiment, the voice of the conscience, pure instinct, in place of
the stern and artificial maxims of the trained lawyer.

I do not deny these qualities of the jury; but I very much suspect
that they are serious and dangerous vices rather than useful
qualities in a legal institution.

In the first place, I believe that the distinction of powers or
social functions, corresponding to the natural law of division of
labour, ought not to be destroyed by the jury. The duty of the
judicial power, before everything else, is to observe and apply
the written law; for if we once admit the possibility that the
judge (popular or trained) has to amend the law, all guarantee of
liberty is lost, and the authority of the individual is unlimited.
As I have said above, we allow the authority of the judge
only when we have actual guarantees of his capacity and
independence, and always within the limits of the general precepts
of the law, and under the control of a superior disciplinary
power.

But the omnipotence of the jury, liberated from all reasonable
regulation, with no directing motives for its verdict, and no
possibility of control, is a two-edged blade, which may sometimes
improve upon the law, or at least usefully indicate to the
legislator the tendencies of public opinion in regard to a
particular crime. But it may also violate the law, and the
liberty of the individual, and then we pay too dear for the slight
advantage which the jury can confer, and which might be replaced
by other manifestations of public opinion. In any case, as
Bentham said, it is better to have our remedy in the law than in
the subversion of the law.

As for private conviction, we willingly admit that no system of
legal proof is acceptable. But it is one thing to substitute for
the legal and artificial assurance of the law the assurance of the
judge who tries the case, and quite another thing to substitute
for conviction founded on argument, and for a critical examination
of the evidence collected during the trial, the blind and simple
promptings of instinct or sentiment.

Even apart from technical notions, which we consider necessary to
the physio-psychological trial of any accused person, social
justice certainly cannot be dispensed through the momentary and
unconsidered impressions of a casual juryman. If a criminal trial
consisted
of the simple declaration that a particular
action was good or bad, no doubt the moral consciousness of the
individual would be sufficient; but since it is a question of the
value of evidence and the examination of objective and subjective
facts, moral consciousness does not suffice, and everything should
be submitted to the critical exercise of the intellect.

To the instinctive blindness of the judgment of juries we must add
their irresponsibility.

No doubt if the legislator required from all judges a simple Yes
or No, then perhaps the jury would be as good as the magistrate.
But instead of the unexplained verdict which Carmignani called
``the method of the cadi,'' we are of opinion that there should
always be substituted a sentence based on reasons and capable of
control, especially in the positive system of criminal procedure,
which demands from the judge an acquaintance with anthropology and
criminal sociology, and from his sentence the elements necessary
to the subsequent treatment of the convict, in agreement with the
characteristics of his individuality and of his crime.

But not only is the jury devoid of the qualities attributed to it;
it has a fatal defect, which alone is sufficient to condemn this
institution of the law.

In the first place, it is not easy to understand how a dozen
jurymen, selected at hazard, can actually represent the popular
conscience, which indeed frequently protests against their
decisions. In any case, the fundamental conception of the jury is
that the mere fact of its belonging to the people gives it the
right to judge; and as the ancient assemblies are no longer
possible, the essence of the jury is that chance alone must decide
the practical exercise of this popular prerogative.

Now these two conceptions of the jury are in manifest
contradiction with the universal rule of public end private life,
that social functions should be exercised by persons selected as
most capable.

Thus in everyday life we all require of every labourer the work of
which he is more particularly capable. No one would dream, for
instance, of having his watch mended by a cobbler. The
administration of criminal justice, on the contrary, is demanded
of any one we chance to come across, be he grocer or man of
independent means, painter or pensioner, who may never in his life
have witnessed a criminal trial!

The irregularity of our statutes corresponds to the incapacity of
individual jurymen; for it is evident that we cannot impose the
rigorous process of a special mode of procedure on the first-
comer. And the law heightens the absurdity by plainly declaring
that juries must give their decision without regard to the
consequences of their verdict! ``Jurymen fail in their highest
duty when they have regard to the penal law, and consider the
consequences which their verdict may have upon the accused''
(Article 342 of the French code of criminal procedure).

That is to say, criminal justice should be based on the neglect of
the elementary rule of justice, according to which every man ought
always to consider the possible consequences of his actions. And
the criminal law demands from juries this proof of their
blindness (which is fortunately impossible) that they should judge
blindfold, with no regard for the prisoner, or for the
consequences which their verdict may have upon him.

It was impossible that the advocates of the jury should fail to
see the absurdity of these principles; and they have been
compelled to slur them over, at any rate in ordinary practice.

In respect of the composition of juries, restrictions have been
introduced, by means of lists of eligible persons, selection by
lot, the optional exclusion of a certain number of jurymen by the
public prosecutor and the defence, &c. All these expedients,
however, some of which are imposed by necessity, can only insure a
general and presumptive capacity, for they have the merely
negative effect of contributing to exclude the most manifest moral
or intellectual incapacity. But the only capacity which is
necessary in a judge, which is a special and positive capacity, is
not guaranteed by these restrictions, which, after all, are a
negation of the very principle of the jury.

And even if the jury were always composed of persons of adequate
capacity, it would still be condemned by two inevitable arguments
of human psychology.

First, the assembling of several individuals of typical capacity
never affords a guarantee of collective capacity, for in
psychology a meeting of individuals is far from being equivalent
to the aggregate of their qualities. As in chemistry the
combination of two gases may give us a liquid so in
psychology the assembling of individuals of good sense may give us
a body void of good sense. This is a phenomenon of psychological
fermentation, by which individual dispositions, the least good and
wise, that is the most numerous and effective, dominate the better
ones, as the rule dominates the exceptions. This explains the
ancient saying, ``The senators are good men, but the Senate is a
mischievous animal. ''

And this fact of collective inferiority, not to say degeneracy, is
observed in casual assemblies, such as juries, meetings, and the
like, far more than in organised and permanent councils of judges,
experts, &c.

Secondly, the jury, even when composed of persons of average
capacity, will never be able in its judicial function to follow
the best rules of intellectual evolution.

Human intelligence, in fact, both individual and collective,
displays these three phases of progressive development: common
sense, reason, and science, which are not essentially different,
but which differ greatly in the degree of their complexity. Now
it is evident that a gathering of individuals of average capacity,
but not technical capacity, will in its decisions only be able to
follow the rules of common sense, or at most, by way of exception,
the rules of reason--that is, of their common mental habits, more
or less directed by a certain natural capacity. But the higher
rules of science, which are still indispensable for a judgment so
difficult as that which bears on crimes and criminals, will always
be unknown to it.

As for the irregularity of the action of a jury, it has been
deemed that this can be provided against by the formal distinction
between a decision of fact and a decision of law, in obedience to
the advice of Montesquieu, that ``to the popular judgment we
should submit a single object, a fact, a single fact. ''

But without dwelling on the remark of Hye-Glunek, that in this way
the legal problem, which ought to be as indivisible as the
syllogism which creates it, is cut into two parts, it is evident
that Cambaceres was amply justified in saying, in the
Council of State, that the separation of fact from law is a
fallacy.

In fine, not only under the positive system of criminal procedure,
which demands of the judge, in addition to legal conceptions of
crime, some anthropological and sociological knowledge of
criminals, but even at the present day it is more correct to say
that the jury is concerned with the crime--that is, in the words
of Binding, with a legal fact, and not merely a material fact;
whilst the judge is concerned with the punishment. Thus, in the
Assize Court, the separation of the judgments is not between fact
and law, but only between the crime and the punishment

Even admitting the possibility of this separation of fact and law,
logic and experience have already belied the assertion of those
who say with Beccaria that, ``for the appreciation of facts,
ordinary intelligence is better than science, common sense better
than the highest mental faculties, and ordinary training better
than scientific. ''

On the contrary, a criminal trial is not only concerned with the
direct perception of facts, but also and especially with their
critical reconstruction and psychological appreciation. In civil
law the fact is really accessory, and both sides may be agreed in
its exposition, whilst disputing about the application of the law
to this fact. But in criminal justice the fact is the principal
element, and it is not merely necessary to admit or to decide upon
this or that detail, but we have also to regard its causes and
effects, from the individual and the social point of view, without
speaking of the common difficulty of a critical and evidential
appreciation of a mass of significant circumstances. So that, as
Ellero said, in a criminal trial the decision as to fact is far
more difficult than that as to law. And by this time daily
practice has accumulated so many proofs, more or less scandalous,
of the incapacity of the jury even to appreciate facts, that it is
useless to dwell upon them.

To conclude this question of the jury, it remains to speak of its
defects, which are not the more or less avoidable consequences of
a more or less fortunate application of the principle, which might
be the case with any social institution, but, on the contrary, are
an inevitable consequence of the laws of psychology and sociology.

So far as science is concerned, a fact exists in connection with a
general law. For common sense, on the other hand, the actuality
of the particular fact is the only matter of concern. Hence the
inevitable tendency of the jury to be dominated by isolated facts, with
no other guide than sentiment, which, especially in southern races,
confines all pity to the criminals, whilst the crime and its victims are
all but forgotten. The very keenness of sentiment which would urge the
people to administer ``summary justice'' on the criminal, when surprised
in the fact, turns entirely in his favour when he is brought up at the
assizes, with downcast mien, several months after the crime. Hence we
obtain an impassioned and purblind justice.

And the predominance of sentiment over the intelligence of the
jury is revealed in the now incurable aspect of judicial
discussions. There is no need and no use for legal and
sociological studies and for technical knowledge; the only need is
for oratorical persuasiveness and sentimental declamations. Thus
we have heard an advocate telling a jury that, ``in trials into
which passion enters, we must decide with passion. '' Hence, also,
the deterioration of science in the Assize Courts, and its faulty
application, and its completely erroneous consequences.

Moreover, the verdict of the jury cannot represent the sum of
spontaneous and individual convictions--not only in countries
where juries are exposed to all kinds of influences during the
adjournments of the discussion, but even in England, where
unanimity is required, and where all communication of the jury
with the outer world is forbidden until the end of the trial. For
in every case the influence of the most intriguing or most
respected jurymen in the jury's room is always inevitable. So
that we have even had irresponsible suggestions of public
deliberation on the part of the jury.

Against these defects of the jury its advocates have set an
objection in regard to the trained judge, namely that the habit of
judging crimes and offences irresistibly inclines the judge to
look upon every prisoner as guilty, and to extinguish the
presumption of innocence even in cases where it would be most
justified.

This objection has really a psychological basis; for the
conversion of the conscious into the unconscious, and the
polarisation of the intellectual faculties and dispositions, are
facts of daily observation, determined by the biological law of
the economy of force. But it is not sufficient to make us prefer
juries to judges.

In addition to the fact that this mental habit of judges may be
counteracted by a better selection of magistrates under the
reforms which I have indicated, it is to be observed that this
presumption of innocence, as we have seen, is not so absolute as
some would have us believe, especially in case of a trial which
follows upon a series of inquiries and proofs in; the preliminary
hearing.

Again, this tendency of judges is restrained and corrected by the
publicity of the discussions. And all, or nearly all, the famous
and oft-repeated instances of judicial errors go back to the time
of the inquisitorial and secret trial--in regard to which an
interesting historical problem presents itself; that is to say the
co-existence of the inquisitorial trial, which impairs every
individual guarantee, with the political liberties of the
mediaeval Italian republics.

This is why the number of acquittals, and of the admission of
extenuating circumstances, is always very remarkable, even in the
Correctional Tribunals, which in Italy show proportions not
greatly differing from those of the Assize Courts.

We must remember that, under our modern penal procedure, it is not
the individual guarantees that are lacking, such as the assigning
of reasons for the sentence, the almost total abolition of
punishments which cannot be reconsidered, appeals, reversals,
revision, which would be still more efficacious under the positive
system which we propose.

One logical consequence of the psychological objection raised
against judges would be the granting of a jury even in the
Correctional Tribunals, though the experience which we have of it
in the Assize Courts is not so encouraging as to leave many
advocates of a jury in the minor courts.

But a decisive objection, founded on the most positive data of
sociology, can be raised against the jury.

The law of natural evolution proves that no variation in the
vegetable or animal organism is useful or durable which is not the
outcome of a slow and gradual preparation by organic forces and
external conditions. Thus an organ which ceases to have a
function to discharge is subject to atrophy, and no new organ is
possible or capable of development if it is not required by a new
function to which it corresponds.

What has been said of organic variations is also true of social
institutions. And when the jury is contemplated from this point
of view, we see that it has been artificially grafted by a
stroke of the legislator's pen on the judicial institutions of the
continent, without the long-continued, spontaneous and organic
connections which it had, for instance, with the English people.
The jury had even disappeared from the continental countries in
which it had left traces of former existence; for it had not found
in the race-characteristics or the social organism that favourable
environment which is supplied in England by the natural groundwork
of institutions and principles which, as Mittermaier says, are its
necessary correlative.

The jury, as it has been politically established on the continent
of Europe, is what Spencer calls a false membrane in the social
organism, having no physiological connection with the rest of the
body politic. So that it is not yet acclimatised, even in France,
after a century of uninterrupted trial. [18]



[18] The actual state of the law in Europe, so far as regards the
jury for common crimes and offences, is as follows:--England,
Scotland, Ireland, and Switzerland have the jury for assizes and
courts of first instance. France, Italy, Cisleithan Austria,
Istria, Dalmatia, Rhenish Prussia, Alsace-Lorraine, Bavaria,
Bohemia, Gallicia, Belgium, Roumania, Greece, Portugal, Russia,
and Malta, have the criminal jury only. Spain had suspended it,
but restored it in 1888. Prussia, Saxony, Baden, Wurtemberg, have
the criminal jury and echevins (bodies of citizens sitting with
the judges) for correctional and police cases. Denmark, Sweden,
and Finland, have the echevins. Holland, Norway, Hungary,
Slavonia, Poland, Servia, and Turkey, have neither juries nor
echevins.



As for the other bio-sociological law, of single organs for single
functions, it seems to me that if in England the jury and the
magistracy have been developed side by side and interwoven, this
is only a case of organic integration. But on the continent, as
the jury has been added artificially to the magistracy,
this is on the other hand a genuine example of non-natural growth.
And if it be said that the jury, as an advance from the
homogeneous to the heterogeneous, indicates a higher degree of
social evolution, we must draw a distinction between
differentiations which amount to evolution and those which, on the
contrary, are symptoms of dissolution. Division of labour,
physiological or social, is a true evolutionary differentiation;
whilst modifications introduced by a disease in the animal
organism, or by a revolt in the social organism, are but the
beginning of a more or less extended dissolution.

Now the jury belongs to the domain of social pathology, for it is
essentially contrary to the law of the specialisation of
functions, according to which every organ which becomes more
adapted to a given task is no longer adapted to any other. It is
only in the lower organisms that the same tissue or organ can
perform different functions, whilst in the vertebrates the stomach
can only serve for digestion, the lungs for oxygenation, and so
on. Similarly in primitive societies, each individual is soldier,
hunter, tiller of the soil, &c. , whilst with the progress of
social evolution every man performs his special function, and
becomes unfitted for other labours. In the jury we have a return
to the primitive confusion of social functions, by giving to any
chance comer, who may be an excellent labourer, or artist, a very
delicate judicial function, for which he has no capacity to-day,
and will have no available experience to-morrow.

In modern societies, to tell the truth, there is another function
assigned to all citizens, outside of their special capacity, and
that is the electoral duty. But the cases are very different.
The franchise does not demand a labour so difficult and delicate
as critical judgment, and the reconstruction of the conditions of
an act and of its author. It has no direct influence on the
positive function of the person elected, but on the contrary it is
a confession of the special incapacity of the elector to do what
he intrusts to the capacity of the person elected. The franchise
is but an elementary function of the assimilation of physiological
elements in the social organism, which in the animal organism is
performed by the aggregate of living cells, and in society by the
aggregate of individuals, not being idiots or criminals, who
possess the minimum of social energy.

Far different is the administration of criminal justice, a
technical and very noble function, which has nothing in common
with the elementary function of the franchise. I could not indeed
agree with the assertion of Carrara, who thought it a
contradiction to deny to the people any participation in the
exercise of the judicial authority when they are allowed to
participate in the exercise of legislative authority. In the
first place, the people have but a very indirect share in the
legislative function, and, even where the referendum exists, very
useful as I believe it to be, the people have only a simple,
almost negative function, to say Yes or No to a law which they
have not made, and would have had no technical ability to make.
Thus the argument of Carrara could only lead to the popular
election of judges, as of legislators, and to a control by the
people of the administrative action of the judges when elected No
doubt this would have theoretical advantages, though in my opinion
it would raise practical difficulties, especially in nations which
do not possess a very keen conscience and political activity,
after enfeeblement by centuries of despotism, or of political and
administrative tutelage and centralisation.


The jury, then, is a retrogressive institution, as shown by
history and sociology, for it represents the mediaeval and
instinctive phase of criminal justice. It has, indeed, a few
advantages (there is always a certain profit in misfortune),
especially when it operates on the final outcome of the classical
theories--bringing to bear, for instance, an irresistible force
against repeated theft, or murders committed at the instigation of
others. And it has sometimes drawn attention to necessary penal
reforms, after accepting certain conclusions of the positive
school, such as the acquittal of criminals of passion, and
political prisoners, or a greater severity towards habitual
criminals.

But the only possible conclusion from the foregoing criticisms is
that the jury should be abolished for the trial of common crimes,
AFTER the introduction of reforms which would ensure the
capacity and independence of the judges.

Meanwhile, since it is much easier to establish a new social
institution than to abolish one, it is worth while to indicate the
principal and most urgent reforms which should be made in the jury
system, so as to eliminate its more serious and frequent
disadvantages.

The theoretical distinction of the classical school between
ordinary and political crimes is not very precise, for the so-
called political crimes are either not crimes (as when they are
confined to the manifestation of an idea), or they are common
crimes which spring from a lofty and social passion in
individuals, who have the characteristics of the criminal by
passion, or, in other words,--are but quasi-criminals; or else
they are common crimes committed by ordinary malefactors, under
the pretext of a popular idea. Instead of distinguishing crimes,
I think we ought to distinguish between ordinary and political
criminals, according to their determining motives, and the social
bearings and historical moment of their acts. At the same time,
whilst our criminal laws retain this distinction, I think it is
useful to keep the jury for the trial of political crimes and
offences, and for those connected with the press and with society
as a whole; for if in these cases the jury might yield to the
influence of class interests and prejudices (as for instance in
the trial of actions arising out of the conflict of capital and
labour), the danger will still be less than it would be with
judges alone, who are not sufficiently independent of the
executive, which in its turn is but the secular arm of the
dominant class, and which therefore combines the interests and
prejudices of the political order with those of the economic and
moral order which dominate the jury.

For common crimes it would be necessary to withhold from a
jury the trial of prisoners who avow their crime. The essence of
a trial by indictment is the principle that the discussion as to
punishment is a private affair, and it has no further ground for
existence when one of the parties withdraws from the duel. Hence
the English mistrust of a prisoner's confession of guilt, which in
the inquisitorial trial, on the other hand, is a mainstay of the
evidence. Yet I believe that in these cases the Scottish system
is preferable to the English. In England the judge begins by
asking the prisoner if he is Guilty or Not Guilty, and in case of
a confession he passes sentence without a verdict from the jury.
In Scotland, on the contrary, the prosecutor can furnish his
proof, in spite of the confession of the prisoner, and demand a
verdict from the jury. In this way it is possible to avoid not
only a scandalous acquittal of prisoners who have confessed their
guilt (as happens in Italy, France, and elsewhere), but also the
danger that the confession may not be true, and that an innocent
man may be condemned.

Juries ought, moreover, as proposed by M. Ellero, to specify
attenuating circumstances, on each of which a special question
ought to be put to them.

The jury ought also to have the right of spontaneously finding in
a sense less serious than that of the charge, even when no
corresponding question has been put to them.

But at the same time it cannot be denied that these would only be
palliatives, more or less efficacious.

The only positive conclusion is that, whilst retaining the jury
for crimes of the political and social order, we should aim
at its abolition for common crimes, immediately after securing
stringent reforms as to the independence and capacity of the
judges.


IV.

It needs no further demonstration that the modern organisation of
punishment, based partly on the assumption that we can measure the
moral culpability of criminals, and partly on an illusion as to
their general amendment, and almost entirely reduced, in
consequence, to imprisonment and the cell system, has absolutely
failed to protect society against crime.

Holtzendorff, one of the best known of the classical school,
frankly confessed that ``the prison systems have made shipwreck. ''
So also in Italy we have had disquisitions ``on the futility of
repression,'' and in Germany it has been held that ``existing
criminal law is powerless against crime. '' Thus the necessity of
taking steps to counteract this failure is forced upon us more and
more every day. We must proceed either by way of legislative
reforms, as effectual as we can make them, but always inspired by
reaction against the established prison system, or by a propaganda
on scientific lines. The most striking form which has been taken
by the latter process is the International Union of Penal Law,
which in 1891, two years after its foundation, numbered nearly six
hundred members of various nationalities, and which in the second
clause of its charter, in spite of the varied reservations of a
few members, notably supported the positive theories.

The defects of the penal system inspired by the theories of
the classical school of criminal law, and by the actual
regulations of the classical prison school, may be briefly summed
up. They are, a fallacious scale of moral responsibility;
absolute ignorance and neglect of the physio-psychological types
of criminals; intervals between verdict and sentence on the one
hand, and between the sentence and its execution on the other,
with a consequent abuse of pardons; disastrous practical effects
of corruption and of criminal association in prisons; millions of
persons condemned to short terms of imprisonment, which are
foolish and absurd; and a continuous, inexorable increase of
recidivism.

So that the tribunals of Europe, as M. Prins observed, with the
absolute impersonality of modern justice, allow their sentences to
fall upon unhappy wretches as a tap allows water to fall drop by
drop upon the ground.

Without counting fines or police detention, there were sentenced
in Italy, in the ten years 1880-89, to various terms of
imprisonment, 587,938 persons by the Pretors, and 465,130 by the
Correctional Tribunals. That is, more than a million terms in the
minor courts within ten years!

And the total number sentenced in Italy to various punishments, by
Pretors, Tribunals, and Assize Courts, in the same ten years, was
not less than 3,230,000.

As for recidivism, without repeating the familiar figures of its
annual increase, it will suffice to recall the astounding fact to
which I drew attention before the central Commission of Legal
Judicial Statistics. That is to say, amongst the prisoners
condemned in 1887 for simple homicide, there were 224 who had been
already condemned, either FOR THE SAME CRIME (63), or for a
crime mentioned in the same section of the penal code (181); and
even of those condemned for qualified manslaughter, 78 had already
been condemned, either FOR THE SAME CRIME (8), or for one of
like character.

In France we have figures equally striking, for they relate not to
the effect of exceptional conditions, or conditions peculiar to
this or that country, but to the uniform consequence of the
classical theories of criminal law and prison organisation.

The total number condemned to imprisonment by the French
tribunals, and detained by the police, in the ten years 1879-88,
was 1,675,000; the Tribunal sentences under six days being
113,000.

And the total condemned to punishments of various kinds, by Assize
Courts, Tribunals, and police courts, reached in the same ten
years the enormous number of 6,440,000 individuals!

The meaning of this is that penal justice at the present moment is
a vast machine, devouring and casting up again an enormous number
of individuals, who lose amongst its wheels their life, their
honour, their moral sense, and their health, bearing thenceforth
the ineffaceable scars, and falling into the ever-growing ranks of
professional crime and recidivism, too often without a hope of
recovery. [19]



[19] As regards recidivism and the enormous numbers tried, England
is in as bad a position as Italy and France. See my articles in
Nineteenth Century, 1892, and Fortnightly Review, 1894. --ED.



It is impossible, then, to deny the urgent necessity of
substituting for our present penal organisation a better system
corresponding to the governing conditions of crime, more effectual
for social defence, and at the same time less gratuitously
disastrous for the individuals with whom it deals.

The positive school, in addition to the partial reforms proposed
by Lombroso, and by myself in the second edition of this work, has
put forward in the Criminology of Garofalo a ``rational system
of punishment,'' whereof it is desirable to give a summary.


I. MURDERERS (moral insensibility and instinctive
cruelty) who commit--

Murder for greed, or other selfish
gratification Criminal Lunatic Asylums: or
Murder unprovoked by the victim the death penalty.
Murder with attendant cruelty


II. VIOLENT OR IMPULSIVE CHARACTERS (deficiency
of the sense of pity, with prejudices on the
subject of honour, on the duty of revenge, &c. ).
Adults who commit--

Violent assault suddenly provoked Removal of the offender from the
by a cruel injury neighbourhood of the victim or
Justifiable homicide in self-defence his family.

Transportation to an island, colony
Homicide to avenge honour or village--at liberty, under
(isolated or endemic) supervision (for an indefinite
period, with from 5 to 10 years
supervision).

Bodily injury during a quarrel; Damages and fine: heavy for such
slight and transitory malice; as can pay. Alternative
blows; threats; slander; verbal penalty:--deduction from wages,
insults or forced labour. Imprisonment
in case of refusal.

Malicious injury or disfigurement; Criminal lunatic asylum (for
mutilation; rape or outrage with hysterical or epileptic), or
violence; restraint on personal Transportation for an indefinite
liberty period, with supervision from 5
to 10 years.

Young persons who commit-- Criminal lunatic asylums (for
those with congenital
Crimes of violence without excuse, tendencies).
or rape Penal colony in case of relapse.
Transportation without constraint.

III. DISHONEST CRIMINALS. Adults who commit--
Habitual theft, swindling, incendiarism, Lunatic asylums (if insane or
forgery, extortion epileptic). Transportation.
Labour-gangs (unfixed periods);
Occasional theft; swindling; or suspension of right to exercise
forgery; extortion; incendiarism a profession, until complete
reparation of damage.

Peculation; embezzlement; sale of Loss of office. Suspension of
offices; abuse of authority civil rights. Fine. Restitution.

Incendiarism; vindictive destruction Reparation of damage (with optional
of property (without personal imprisonment). Criminal
injury) lunatic asylums (for the insane).
Transportation (for recidivists).

Bankruptcy, when due to malpractice Restitution. Prohibition to trade
or to discharge public functions.

Uttering false coin; forgery of stock Imprisonment (unfixed periods)
and certificates; personation, and fine, in addition to loss of
false witness, &c. office, and restitution.

Bigamy, palming or concealment of Banishment for unfixed periods.
birth


Young persons who commit--
Theft, swindling, &c. An agricultural colony (for unfixed
periods).


IV. Persons guilty of--

Outbreaks, resistance or disobedience Imprisonment(for unfixed periods)
to authority



In other words, the system of repression proposed
by M. Garofalo amounts to this:--

Absolute elimination of the criminal
Penalty of death
Criminal lunatic asylum.
Transportation with liberty.
Perpetual banishment.

Relative elimination Banishment for various periods.
Agricultural colonies.
Interdiction from a particular
neighbourhood.

By payment of money.
Reparation of damages Deduction from wages.
Fine (going to the State) Forced labour, without
Indemnification of the victims imprisonment.

Imprisonment for fixed periods for special offences (forgery and
outbreaks);
or as alternative to indemnification or forced labour.
Interdiction of certain professions and public functions.



M. Liszt also, agreeing with the positive school in regard to the
necessity of a radical reform in the penal system, yet with
certain reservations, has propounded a scheme, which, however, as
it does not sufficiently consider various classes of criminals,
whom he divides merely into the habitual and the occasional, would
need completion, especially in comparison with the well-reasoned
scheme of Garofalo. M. Liszt's system is as follows:--

Punishment by fines.

In proportion to the property of the
offender--not alternative with For offences (with alternative
imprisonment imprisonment).

Capable of being worked out by For contraventions of the law
forced labour without imprisonment (without imprisonment).

Conditional sentences.

For first offenders condemned to
imprisonment, with or without For offences punishable by
sureties for three years imprisonment.

Imprisonment (for an indeterminate period, a maximum and minimum
being enacted).
Separate confinement--six weeks to two years.

House of detention (separate for 2 to 15 years (with police
one year, then gradual relaxation supervision and assistance of
discharged prisoners)--or for life.

Indemnifications (always as a civil liability) added to other penalties.



I believe, however, that it is necessary, before laying down
practical and detailed schemes, more or less complete, to
establish certain general criteria, based upon the
anthropological, physical, and social data of crime, such as may
lead up to a positive system of social defence.

These fundamental criteria, it seems to me, can be reduced to the
three following:--(1) No fixity in the periods of segregation of
criminals; (2) the social and public character of the exaction of
damages; (3) the adaptation of defensive measures to the various
types of criminals.

1. For every crime which is committed, the problem of punishment
ought no longer to consist in administering a particular dose, as
being proportionate to the moral culpability of the criminal; but
it should be limited to the question whether by the actual
conditions (breach of law or infliction of injury) and by the
personal conditions (the anthropological type of the criminal) it
is necessary to separate the offender from his social environment
for ever, or for a longer or shorter period, according as he is or
is not regarded as capable of being restored to society, or
whether it is sufficient to exact from him a strict reparation of
the injury which he has inflicted.

Under this head there is a radical contradiction. The
existing schemes of punishment, differing in their machinery (and
out of harmony with the sentence of the judge, often even with the
terms of the law), are all based on the principle of fixed periods
of punishment, graduated into hundreds and thousands of possible
doses, and have regard far more to the crime than to the criminal.
On the other hand we have the positive system of punishment, based
on the principle of an unfixed segregation of the criminal,
which is a logical consequence of the theory that punishment ought
not to be the visitation of a crime by a retribution, but rather a
defence of society adapted to the danger personified by the
criminal.

This principle of unfixed punishment is not new, but it is only
the positive theory which has given it system and life. The idea
of justice as assigning punishment to a crime, measured out by
days and weeks, is too much opposed to the principle of the
indeterminate sentence to allow it to receive any systematic trial
under the sway of the classical theories. There has been only an
isolated and exceptional use of it here and there, such as the
seclusion of mad criminals in special asylums, ``during her
Majesty's pleasure,'' in England. Nevertheless, personal freedom
(which is held to be violated by seclusion for unfixed periods) is
greatly respected by the English people.

The fundamental principle of law is that of a restriction imposed
by the necessity of social existence. It is evident, therefore,
to begin with, that seclusion for an unfixed period, as for life,
is in no way irreconcilable with this principle of law, when
imposed by necessity. Thus it has been proposed, even by
the classical school, as a mode of compensation or adjustment.

If, indeed, we admit an increase of punishment for a first
relapse, it is logical that this increase should be proportional
to the number of relapses, until we come to perpetual seclusion or
transportation, and even to death, as under the mediaeval laws.
So that there are some of the classical school who, by way of
being logical if not practical, and refusing to admit progressive
increase, begin by refusing increase in any degree, even for a
first relapse.

Moreover, if the jurists agree in allowing conditional liberation,
before the term assigned in the sentence, when the prisoner seems
to have given proof of amendment, the natural consequence, by mere
abstract logic, ought to be a prolongation of punishment for the
prisoner who is not amended, but continues to be dangerous.

This is admitted, amongst others, by Ortolan, Davesies de
Pontes, and Roeder, who quote as favourable, though only for
recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve,
von Lichtenberg, Gotting, Krause, Ahrens, Lucas Bonneville,
Conforti, and others, amongst students of criminality; and
Ducpetiaux, Ferrus, Thomson, Mooser, Diez, Valentini, and D'Alinge
amongst prison experts.

After this first period, the principle of segregation for an
unfixed term, as a basis for the penal system, has been supported
by Despine, and developed by a few German writers. These latter
have insisted especially on the disadvantages of the penal
systems inspired by the classical theories, though they run
somewhat to excess, like Mittelstadt, who proposed the re-
establishment of the brutal punishment of flogging.

In corporal punishments, it is true, there would be a certain gain
of efficaciousness, particularly against such hardened offenders
as the born criminals, so that there is a reaction in favour of
these punishments. M. Roncati, for instance, writing of prison
hygiene, says that he would be glad to see ``the maternal
regime,'' with its salutary use of physical pain before the
child has developed a moral sense; and if flogging is
objectionable, resort might be had to electricity, which is
capable of giving pain without being dangerous to health or
revolting. Similarly Bain says that the physiological theory of
pleasure and pain has a close relation to that of rewards and
punishments, and that, as punishment ought to be painful, so long
as it does not injure the convict's health (which imprisonment is
just as likely to do), we might have recourse to electric shocks,
which frighten the subject by their mysterious power, without
being repugnant. Again, the English Commission of Inquiry into
the results of the law of penal servitude declared in its report
that, ``In English prisons, disciplinary corporal punishments
(formerly the lash, then the birch) are inflicted only for the
most serious offences. The evidence has shown that in many cases
they produce good results. ''

Nevertheless corporal punishments, as the main form of repression,
even when carried out with less barbarous instruments, are
too deeply opposed to the sentiment of humanity to be any longer
possible in a penal code. At the same time they are admissible as
disciplinary punishments, under the form of cold baths, electric
shocks, &c. , all the more because, whether prescribed by law or
not, they are inevitable in prisons, and, when not regulated by
law, give rise to many abuses, as was shown at the Stockholm
Prison Conference in 1878.

I agree with Kirchenheim that Dr. Kraepelin's scheme of seclusion
for unfixed periods is more practical and hopeful. When the
measure of punishment is fixed beforehand, the judge, as Villert
says, ``is like a doctor who, after a superficial diagnosis,
orders a draft for the patient, and names the day when he shall be
sent out of hospital, without regard to the state of his health at
the time. '' If he is cured before the date fixed, he must still
remain in the hospital; and he must go when the time is up, cured
or not.

Semal reached the same conclusion in his paper on ``conditional
liberation,'' at the second Congress of Criminal Anthropology.

And this notion of segregation for unfixed periods, put forward in
1867 for incorrigible criminals by the Swiss Prison Reform
Association, has already made great progress, especially in
England and America, since the Prison Congress of London (1872)
discussed this very question of indefinite sentences, which the
National Prison Congress at Cincinnati had approved in the
preceding year.

In 1880 M. Garofalo and I both spoke in favour of
indefinite segregation, though only for incorrigible
recidivists; and the same idea was strikingly supported in M. Van
Hamel's speech at the Prison Congress at Rome (1885). The
eloquent criminal expert of Amsterdam, speaking ``on the
discretion which should be left to the judge in awarding
punishment,'' made a primary distinction between habitual
criminals, incorrigible and corrigible, and occasional criminals.
``For the first group, perpetual imprisonment should depend on
certain conditions fixed by law, and on the decision of the judge
after a further inquiry. For the second group, the application of
an undefined punishment after the completion of the first sentence
will have to depend in the graver cases on the conditions laid
down by law, and in less serious cases upon the same conditions
together with the decision of the judge, who will always decide
from time to time, after further inquiry, as to the necessity for
prolonging the imprisonment. For the third group, the judge will
have to be limited by law, in deciding the punishment, by special
maximums, and with a general minimum. ''

The Prison Congress of Rome naturally did not accept the principle
of punishment for unfixed periods. More than that, advancing on
the classical tendency, it decided that ``the law should fix the
maximum of punishment beyond which the judge may not in any case
go; and also the minimum, which however may be diminished when the
judge considers that the crime was accompanied by extenuating
circumstances not foreseen by the law. ''

It is only of late years, in consequence of the reaction
against short terms of imprisonment, that the principle of
segregation for unfixed periods has been developed and accepted by
various writers, in spite of the feeble objections of Tallack,
Wahlberg, Lamezan, von Jagemann, &c.

Apart, also, from theoretical discussion, this principle has been
applied in a significant manner in the United States, by means of
the ``indeterminate sentence. '' The House of Correction at Elmira
(New York) for young criminals carries into effect, with special
regulations of physical and moral hygiene, the indeterminate
imprisonment of young prisoners; and this principle, approved by
the Prison Congresses at Atlanta (1887), Buffalo (1888), and
Nashville (1889), has been applied also in the New York prisons,
and in the States of Massachusetts, Pennsylvania, Minnesota, and
Ohio.

M. Liszt proposes that the indeterminate character of punishment
should be only relative, that is to say, limited between a minimum
and a maximum, these being laid down in the sentence of the judge.
Special commissions for supervising the administration of
punishment, consisting of the Governor of the prison, the Public
Prosecutor, the judge who heard the case, and two members
nominated by Government (instead of the court which passed
sentence, as proposed by Villert and Van Hamel), should decide on
the actual duration of the punishment, after having examined the
convict and his record. Thus these commissions would be able to
liberate at once (with or without conditions) or to order a
prolongation of punishment, especially for habitual criminals.

With the formation of these commissions there might be associated
the prison studies and aid of discharged prisoners referred to on
a former page.

But I think that this proposal of M. Liszt is acceptable only for
commissions of supervision, or of the execution of punishment,
such as already exist in several countries, with a view solely to
prison administration and benevolence, and in which of course the
experts of criminal anthropology ought to take part, who, as I
have suggested, should be included in every preliminary criminal
inquiry. As for the determination of the maximum and minimum in
such a sentence, I believe it would not be practicable; the acting
commissions might find it necessary to go beyond them, and it
would be opposed to the very principle of indeterminate
segregation. The reason given by M. Liszt, that with this
provision the contrast with actual systems of punishment would be
less marked, does not seem to me decisive; for the principle we
maintain is so radically opposed to traditional theories and to
legislative and judicial custom that this optional passing of the
limits would avoid no difficulty, whilst it would destroy the
advantages of the new system.

In other words, when the conditions of the act committed and the
criminal who has committed it show that the reparation of the
damage inflicted is not sufficient by way of a defensive measure,
the judge will only have to pronounce in his sentence an
indefinite detention in the lunatic asylum, the prison for
incorrigibles, or the establishments for occasional criminals
(penal colonies, &c. ).

The execution of this sentence will be rendered definite by
successive steps, which will no longer be detached, as they now
are, from the action of the magistrate, and taken without his
knowledge, but will be a systematic continuation of his work.
Permanent commissions for the supervision of punishment, composed
of administrative functionaries, experts in criminal anthropology,
magistrates, and representatives of the Public Prosecutor and the
defence, would render impossible that desertion and oblivion of
the convict which now follow almost immediately on the delivery of
the sentence, with the execution of which the judge has nothing to
do, except to see that he is represented. Pardon, or conditional
liberation, or the serving of the full punishment, are all left at
present to the chance of a blind official routine. These
commissions would have great social importance, for they would
mean on one hand the protection of society against imprudent
liberation of the most dangerous criminals, and on the other hand
the protection of the less dangerous against the danger of an
imprisonment recognised as excessive and unnecessary.


Allied to the principle of indeterminate segregation is that of
conditional release, which with the progressive prison system,
known as the Irish, is now accepted in nearly all European
countries. But conditional liberation in the system of definite
punishments, without distinction amongst the types of criminals,
is both contradictory in theory and ineffectual in practice. At
present, indeed, it has only a mechanical and almost impersonal
application, with one fallacious test, that of the alleged
``good conduct'' of the prisoner, which, according to the English
Inquiry Commission in 1863, ``can only have the negative value of
the absence of grave breaches of discipline. ''

It will be understood that conditional release, as it would be
organised in the positive system of indeterminate segregation,
ought only to be granted after a physio-psychological examination
of the prisoner, and not after an official inspection of
documents, as at present. So that it will be refused, no longer,
as now, almost exclusively in regard to the gravity of the crime,
but in regard to the greater or less re-adaptability of the
criminal to social conditions. It will therefore be necessary to
deny it to mad and born criminals who are guilty of great crimes.

Conditional liberation is now carried out under the special
supervision of the police; but this is an ineffectual measure for
crafty criminals, and disastrous for occasional criminals, who are
shut out by the supervision from re-adaptation to normal
existence. The system of indeterminate segregation renders all
special supervision useless. Moreover, this duty only distracts
policemen by compelling them to keep an eye on a few hundred
liberated convicts, and to neglect thousands of other criminals,
who increase the number of unknown perpetrators of crime.

Similarly as to the discharged prisoners' aid societies, which,
notwithstanding their many sentimental declamations, and the
excellence of their intentions, continue to be as sterile as they
are benevolent. The reason here also is that they forget
to take into account the different types of criminals, and that
they are accustomed to give their patronage impartially to all
discharged prisoners, whether they are reclaimable or not. It
must not be forgotten, moreover, that this aiding of malefactors
ought not to be exaggerated when there are millions of honest
workmen more unfortunate than these liberated prisoners. In spite
of all the sentimentalism of the prisoners' aid societies, I
believe that a foreman will always be in the right if he chooses
an honest workman for a vacancy in his workshops in preference to
a discharged prisoner.

At the same time these societies may produce good results if they
concern themselves solely with occasional criminals, and
especially with the young, and make their study of crime
contribute to the training of future magistrates and pleaders.


2. The second fundamental principle of the positive system of
social defence against crime is that of indemnification for
damage, on which the positive school has always dwelt, in
combination with radical, theoretical, and practical reforms.

Reparation of damage suffered by the victims of crime may be
regarded from three different points of view:--(1) As an
obligation of the criminal to the injured party; (2) as an
alternative for imprisonment for slight offences committed by
occasional criminals; and (3) as a social function of the State on
behalf of the injured person, but also in the indirect and not
less important interest of social defence.

The positive school has affirmed the last two reforms--the second
on the initiative of Garofalo and Puglia, and the third on my own
proposal, which, as being more radical, has been more sharply
contested by the classical and eclectic schools.

In my treatise on ``The Right of Punishment as a Social
Function,'' I said: ``Let us not be told that civil
reparation is no part of penal responsibility.