No More Learning

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
application, 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 against 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 mediaeval abuses of the
inquisitorial system, in the sense of a progressive increase of
individual guarantees against the domination of society.

As we considered it necessary in the interests of social self-
defence, in the case of criminal law, to combat the individualist
excesses of the classical school, so in regard to penal procedure,
whilst admitting the irrevocable guarantees of individual liberty,
secured under the old system, we think it necessary to restore the
equilibrium between 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,
if 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 indemnification 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,
notwithstanding 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 commonly
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 Chalonssur-Marne offered a prize for an essay on
the subject, and awarded it to Brissot de Warville, for his work,
``Le Sang Innocent Venge. '' In the records of the
Etats Generaux 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 Chalonssur-
Marne proposed the same subject for an essay; and it has been the
object of sundry proposals, all rejected, as in 1867 during the
discussion on criminal appeals, on amendments moved by Jules
Favre, Richard, and Ollivier; and again in 1883 by Depute
Pieyre, and in 1890 by Depute Reinach.

This reform has been advocated by Necker, amongst other writers,
in his memoir on ``Financial Administration in France,'' and by
Pastoret, Voltaire, Bentham, Merlin, Legraverend, Helie,
Tissot, and more comprehensively by Marsangy in his ``Reform of
the Criminal Law'' (1864). Marsangy advocated many other
practical reforms which have since been adopted, in substitution
for the objectionable short terms of imprisonment. More recently
the subject has been treated in France by the magistrates Bernard,
Pascaud, Nicolas, Giacobbi, and by the Attorney-Generals Molines,
Jourdan, Houssard, Dupry, Bujard, in their inaugural addresses.

In Italy there was a notable precedent for this 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, Neuchatel, Geneva, Bale, and Berne.

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,
Mittermaier, 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 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 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.