Blasphemy, in spite of the
slitting
of the nose, tongue, and
lips, enacted by the penal laws, and continued in France from
Louis XI.
lips, enacted by the penal laws, and continued in France from
Louis XI.
Criminal Sociology by Enrico Ferri
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.
.
.
100 113|
The most constant general fact shown by these data is in all cases
the very remarkable increase of slighter delinquencies, side by
side with constancy or slight diminution in crimes against
the person, and a large diminution in crime against property.
This is seen in France, England, Belgium, whilst there is an
increase both of crimes and offences in Austria.
Behind the general fact, however, we must distinguish between the
actual and the apparent.
On the one hand, the decrease of more serious crime against
property is simply due to prisoners electing to be sentenced by
the inferior court, which is at the discretion of the Tribunals in
France, but legally established in Belgium, by the laws of 1838
and 1848, and in England by the Acts of 1856 and 1878--an election
of the slighter but more certain punishment of the magistrates in
preference to going before a jury. Indeed, crimes against the
person, in which there is less power of election, do not exhibit
so marked a decrease; and accordingly we see that in Belgium the
increase of ``correctionalised'' crimes is due far more to crimes
against property (62 per cent in 36 years) than to those against
the person (9 per cent. ).
On the other hand, the growth of slighter delinquency is partly
the effect of special enactments, which are constantly creating
new infractions, offences or contraventions. For France may be
mentioned the law of 1832 on eluding supervision, that of 1844 on
the game laws, that of 1857 on the false description of goods for
sale, of 1845 on railway offences, of 1849 on the expulsion of
refugees, of 1873 on drunkenness, and of 1874 on requisition of
horses. I dealt with the statistical results of these laws, and
with the influence of the increasing number of police
agents, in my ``Studies on Criminality in France'' (Rome,
1881); and I will here add only a single observation. If it is
true, as M. Joly says, that other laws, passed since 1826, have
extinguished a few offences, or at least have diminished their
frequency under less severe regulations, yet it is also true that
the new infractions created in the past half-century show far
higher numbers than those of the infractions which have been
extinguished or rendered less easy. So that amongst the 297 per
cent. of increase on the offences tried in France between 1826 and
1887, the element due to legal creation of new infractions must
not be ignored.
It cannot, however, be denied that for certain more frequent
offences we have a real and very noteworthy increase, apart from
any legislative or statistical cause of disturbance.
The same observation may be made in regard to England. There also
the increase of 76 per cent, during thirty years of offences tried
summarily is due in part to new infractions, created by special
legislation, and especially by the Education Act of 1873, under
which there were more than forty thousand infractions in 1878, and
more than sixty-five thousand in 1886.
In regard to this delinquency in England (wherein are included,
over and above real offences, certain infractions corresponding to
the police contraventions of the Italian, French, Belgian and
Austrian codes) it is to be observed that the increase of 76 per
cent. in thirty years is due rather to contraventions than to
offences. And this would establish a remarkable difference
between the variations of delinquency in England and in France.
If we analyse the record of infractions tried summarily in
England, we find that contraventions of the law in respect of
drunkenness account for most of this increase (from 82,196 in 1861
to 183,221 in 1885 and 165,139 in 1886). On the other hand,
offences against the person (assaults) and against property
(stealing, larceny, malicious offences) have not shown so large an
increase.
In fact, if we compare the variations in assaults and thefts in
France and England, we have the following figures:--
ENGLAND.
1861-3. 1879-81.
Prisoners tried summarily for assaults . . . . . . 100 102
Ditto for stealing, larceny, and malicious
offences . . . . . . . . . . . . . . . . . . . . . 100 110
FRANCE.
Cases tried by the Tribunals:
For assault and wounding . . . . . . . . . . . . . . . 100 134
For simple theft . . . . . . . . . . . . . . . . . . . . . 100 116
So that in England not only the total delinquency, but more
especially the commoner offences against the person and against
property show a slighter increase than that which has been
established for the same period in France. Whilst we do not
overlook the greater increase of crimes against the person in
England (coinciding, of course, with the doubling of the
population in fifty-five years), this fact seems to me to prove
the salutary influence of English organisations against certain
social factors which lead up to delinquency (such as the care of
foundlings, the guardianship of the poor, and so forth),
notwithstanding the great development of economic activity, which
is assuredly in no way inferior to that of France. The figures
strengthen my conclusions as to the social factors of crime, and
refute the optimistic theory of Poletti.
But the actual participation of each country in the general
increase of crime in Europe is determined by other causes, outside
of the artificial influences of different codes of law. And the
most general and constant of these causes, in all the various
physical and social environments, is the annual increase of
population, which, by adding to the density of the inhabitants of
each country, multiplies their material and legal relations to one
another, and, consequently, the objective and subjective
constituents of crime.
Taking the official Italian figures, which are also relied on by
M. Levasseur, we find, for the periods corresponding to the
variations of criminality, the following rates of increase in the
population of the different countries. Ireland shows a decrease,
owing to emigration.
Increase.
Italy 22,104,789 in 1863--30,947,306 in 1889 40 per cent.
'' 27,165,553 in 1873--30,565,188 in 1888 12 ''
France 31,858,937 in 1826--38,218,903 in 1887 20 per cent.
Belgium 4,072,619 in 1840-- 5,583,278 in 1885 44 ''
Prussia 21,046,984 in 1852--26,614,428 in 1878 26 ''
Germany 45,717,000 in 1882--47,540,000 in 1887 4 ''
England 13,896,797 in 1831--27,870,586 in 1886 101 ''
'' 20,066,224 in 1861--27,870,586 in 1886 39 ''
Austria 20,217,531 in 1869--23,070,688 in 1886 14 ''
Ireland 5,798,967 in 1861-- 4,777,545 in 1888 decrease 17 ''
It must, however, be observed, with regard to this increase of the
population, firstly that it tells as a factor of criminality
only in so far as it is not neutralised, wholly or in part, by
other influences, mainly social, which prevent crime or render it
less grave. Secondly, it is not right merely to compare the
proportional rates of increase in the population with those of
crime, as was done for instance by M. Bodio, who said that in
Italy, from 1873 to 1883, ``since the population had increased by
7. 5 per cent. , crime might have increased during the same time by
7. 5 per cent. , without its being fair to say that it had actually
increased. '' In point of fact, as M. Rossi remarked, since in
Italy, and almost all the European States, the growth of the
population is due to the excess of births over deaths (for
emigration is more numerous than immigration), it is evident that,
when we confine our attention to short periods, the addition to
the population, consisting of children under ten or twelve years,
does not increase crime in an appreciable degree. The deaths, on
the other hand, must be subtracted from all stages of human life,
but especially from the number of those who can and do commit
crimes and offences.
Now, as we cannot in this place go into detail, I must confine
myself to the statement of a few characteristic facts, as
illustrated by European crime. Thus we perceive the influence of
the great famine of 1846-7 on crimes against property in France
and Belgium; the rapid oscillations of crime in Ireland,
indicating the unstable political and social conditions of the
country; and the parallel movements of crime in, France and
Prussia. We see, indeed, a constant diminution of crime for the
period between 1860 and 1870, followed (after the
statistical disturbance of the terrible year 1870-1) by a period
of serious and continued increase of crime, resulting from social
and economic conditions, as shown especially by the increase of
vagrancy and theft since 1875.
All these general facts go to prove the close and intimate
connection between crime and the aggregate of its various
constituents. So that, without pursuing more detailed inquiries
into certain social factors of crime, which are capable of
statistical enumeration, such as the increase in the number of the
police, the abundance or scarcity of corn and wine, the spread of
drunkenness, family circumstances, increase of personal
possessions, the facility or otherwise of the settlement of
disputes, commercial and industrial crises, the rate of wages, the
variation from year to year of the general conditions of
existence, and so forth, coincident with the development of
education, encouragements to thrift and the organisation of
charity, we must now proceed to draw from these statistical data
the most important conclusions of criminal sociology.
I.
Criminal statistics show that crime increases in the aggregate,
with more or less notable oscillations from year to year, rising
or falling in successive waves. Thus it is evident that the level
of criminality in any one year is determined by the different
conditions of the physical and social environment, combined with
the hereditary tendencies and occasional impulses of the
individual, in obedience to a law which I have called, in analogy
with chemical phenomena, the law of criminal saturation.
Just as in a given volume of water, at a given temperature, we
find a solution of a fixed quantity of any chemical substance, not
an atom more or less, so in a given social environment, in certain
defined physical conditions of the individual, we find the
commission of a fixed number of crimes.
Our ignorance of many physical and psychical laws and of
innumerable conditions of fact, will prevent us from obtaining a
precise view of this level of criminality. But none the less is
it the necessary and inevitable result of a given physical and
social environment. Statistics show us, indeed, that the
variations of this environment are always attended by
consequential and proportional variations of crime. In France,
for instance (and the observation will be found to apply to every
country which possesses an extended series of criminal
statistics), the number of crimes against the person varies but
little in sixty-two years. The same thing holds good for England
and Belgium, because their special environment is also less
variable, by reason that hereditary dispositions and human
passions cannot vary profoundly or frequently, except under the
influence of exceptional disturbances of the weather, or of social
conditions. In fact, the more serious variations in respect of
crimes against the person in France have taken place either during
political revolutions, or in years of excessive heat, or of
exceptional abundance of meat, grain, and wine. This is
illustrated by the exceptional increase of crime from 1849 to
1852. Minor offences against the person, on the contrary, which
are more occasional, assaults and wounding, for example, vary in
the main, as to their annual oscillations, with the abundance of
the wine harvest, whilst in their oscillations from month to month
they display a characteristic increase during the vintage periods,
from June to December, notwithstanding the constant diminution of
other offences and crimes against the person.
On the other hand, crimes against property, and still more
offences against property, show wide oscillations on account of
the variability of the special environment, which is almost always
in a condition of unstable equilibrium, as in periods of scarcity,
and of commercial, financial and industrial crises, and so forth,
whilst they are subject also to the influence of the physical
environment. Crimes and offences against property display
extraordinary increases in the severest winter seasons, and
diminutions in milder winters.
And this correspondence between the more general, powerful, and
variable physical and social factors of crime, as well as
its more characteristic manifestations such as thefts, wounding,
and indecent assaults, is so constant and so direct that, when I
was studying the annual movement of criminality in France, and
perceived some extraordinary oscillation in the crimes and
offences, I foresaw that in the annals of the year I should find
mention of an agricultural or political crisis, or an exceptional
winter or summer in the records of the weather. So that with a
single column of a table of criminal statistics I was able to
reconstruct the historical condition of a country in its more
salient features. In this way psychological experiment again
confirmed the truth of the law of criminal saturation.
Not only so, but it may be added that as, in chemistry, over and
above the normal saturation we find that an increased temperature
of the liquid envelopes an exceptional super-saturation, so in
criminal sociology, in addition to the ordinary saturation we are
sometimes aware of an excess of criminal saturation, due to the
exceptional conditions of the social environment.
Indeed it is to be observed not only that the main and typical
criminality has a sort of reflex criminality depending upon it,
but also that an increase of more serious or more frequent crimes
induces a crop of resistance to and assaults upon the guardians of
public order, together with false witness, insults, avoidance of
supervision, absconding, and the like. Certain crimes and
offences also have their complementary offences, which from being
consequences become in their turn the causes of new offences.
Thus concealment and purchase of stolen goods increase
simultaneously with theft; homicide and wounding lead to the
illegal carrying of arms; adultery and abusive language to duels,
and so forth.
Beyond this there are sundry kinds of excessive criminal
saturations which are exceptional, and therefore transitory.
Ireland and Russia present us with conspicuous examples in their
political and social crimes; and similarly America, during
election contests. So in France before and after December 2 1851,
the harbouring of criminals, which in no other quadrennial period
from 1826 to 1887 exceeds a record of fifty, rises in 1850-53 as
high as 239. So during the famine of 1847, theft of grain rises
in France to forty-two in a single year, whilst for half a century
it barely reaches a total of seventy-five. It is notorious,
again, that in years of dear provisions, or severe winters, a
large number of thefts and petty offences are committed for the
sole object of securing maintenance within the prison walls. And
in this connection I have observed in France that other offences
against property decrease during a famine, by an analogous
psychological motive, thus presenting a sort of statistical
paradox. Thus, for example, I have found that as oidium and
phylloxera are more effective than severe punishments in
diminishing the number of assaults and cases of unlawful wounding,
so famine succeeds better than the strongest bars, or dogs kept
loose in the prison yards, in preventing the escape of prisoners,
who at such times are detained by the advantage of being supported
at the public expense.
For a parallel reason in 1847, a famine year, whilst all
crimes and offences against property increased in an extraordinary
fashion, only the crimes of theft and breach of confidence by
household servants showed a characteristic decrease, because such
persons were deterred by the fear of being dismissed by their
employers during the time of distress. The figures are as
follows:--
FRANCE (Assizes). 1844. 1845. 1846. 1847.
Crimes against property . . . 3,767 3,396 3,581 4,235
Breach of confidence by
household servants . . . . . . 136 128 168 104
Thefts by the same . . . . . . 1,001 874 924 896
M. Chaussinand adds, by way of confirmation of my statement that
during economic crises, such as famine and high prices of grain,
the number of cases of escape from justice also decreases, FOR
``thieves and tramps prefer arrest, in order to escape from the
misery which afflicts them outside the prison walls. ''
Two fundamental conclusions of criminal sociology may be drawn
from this law of criminal saturation.
The first is that it is incorrect to assert a mechanical
regularity of crime, which from Quetelet's time has been much
exaggerated. There has been a too literal insistance on his
famous declaration that ``the budget of crime is an annual
taxation paid with more preciseness than any other''; and that it
is possible to calculate beforehand how many homicides, poisoners,
and forgers we shall have, because ``crimes are generated every
year in the same number, with the same punishments, in the same
proportions. '' And one constantly meets with this echo of the
statisticians, that ``from year to year crimes against the person
vary at the most by one in twenty-five, and those against
property by one in fifty''; or, again, that there is ``a law of
limitation in crime, which does not vary by more than one in
ten. ''
This opinion, originated by Quetelet and other statisticians after
an inquiry confined to the more serious crimes, and to a very
short succession of years, has already been refuted, in part by
Maury and Rhenisch, and more plainly by Aberdare, Mayr,
Messedaglia and Minzloff.
In fact, if the level of criminality is of necessity determined by
the physical and social environment, how could it remain constant
in spite of the continual variations, sometimes very considerable,
of this same environment? That which does remain fixed is the
proportion between a given environment and the number of crimes:
and this is precisely the law of criminal saturation. But the
statistics of criminality will never be constant to one rule from
year to year. There will be a dynamical but not a statical
regularity.
Thus the element of fixity in criminal sociology consists in
asserting, not the fatality or predestination of human actions,
including crimes, but only their necessary dependence upon their
natural causes, and therewith the possibility of modifying effects
by modifying the activity of these causes. And, indeed, even
Quetelet himself recognised this when he said, ``If we change the
social order we shall see an immediate change in the facts which
have been so constantly reproduced. Statisticians will then have
to consider whether the changes have been useful or injurious.
These studies therefore show how important is the mission of
the legislator, and how responsible he is in his own sphere for
all the phenomena of the social order. ''
The second consequence of the law of criminal saturation, one of
great theoretical importance, is that the penalties hitherto
regarded, save for a few platonic declarations, as the best
remedies for crime, are less effectual than they are supposed to
be. For crimes and offences increase and diminish by a
combination of other causes, which are far from being identical
with the punishments lightly written out by legislators and
awarded by judges.
History affords us various impressive examples.
The Roman Empire, when society had fallen into extreme corruption,
recalling many symptoms of our own epoch, vainly promulgated laws
which visited celibacy, adultery, and incest--``venus
prodigiosa''--with ``the vengeance of the sword and punishments of
the utmost severity. '' Dio Cassius (``Hist. Rom. ,'' lxxvi. 16)
says that in the city of Rome alone, after the law of Septimus
Severus, there were three thousand charges of adultery. But the
stringent laws against these crimes continued to the days of
Justinian, which shows that the crimes had not been checked; and,
as Gibbon says (``Decline and Fall,'' ch. 44), the Scatinian law
against ``venus nefanda'' had fallen into abeyance through lapse
of time and the multitude of offenders. Yet we see in our own
days, as in France, that there are some who would oppose celibacy
with no other remedy than a law passed for the purpose.
Since mediaeval times the increasing gentleness of manners
has caused a diminution of crimes of blood, once so numerous that
there was need of sundry ``truces'' and ``peaces,''
notwithstanding the harsh penalties of previous centuries. And Du
Boys called Cettes simple because, after giving a table of
shocking punishments in the Germany of his day (the fifteenth
century), he marvelled that all these pains and torments had not
prevented the increase of crimes.
Imperial Rome deluded herself with the idea that she could stamp
out Christianity with punishments and tortures, which, however,
only seemed to fan the flame. In the same way Catholic Europe
hoped to extinguish Protestantism by means of vindictive
persecution, and only produced the opposite effect, as always
happens. If the Reformed faith does not strike root in Italy,
France, and Spain, that must be explained by psychological reasons
proper to those nations, independently of the stake and of
massacres, for it did not strike root even when religious belief
was liberated from its fetters. This does not prevent all
governments in every land from continuing to believe that, in
order to arrest the spread of certain political or social
doctrines, there is nothing better than to pass exceptional penal
laws, forgetting that, with ideas and prejudices just as with
steam, compression increases the expansive force.
Popular education has swept away the so-called crimes of magic and
witchcraft, though they had withstood the most savage punishments
of antiquity and mediaeval times.
Blasphemy, in spite of the slitting of the nose, tongue, and
lips, enacted by the penal laws, and continued in France from
Louis XI. to Louis XV. , was very common in the middle ages, being
(like witchcraft, trances, and self-immurement) a pathological or
abnormal manifestation of religious emotion, which in those times
had an extraordinary development. And the habit of blasphemy
diminished under the psychological and social evolution of our own
days, precisely when it ceased to be punished. Or, rather, it
continued to this day, as in Tuscany, where the Tuscan penal code
(Art. 136), which survived until December 31, 1889, still punished
it with five years' imprisonment. The illusion as to the efficacy
of punishment is so deeply rooted that a proposal was made in the
Senate, in 1875, to include this penalty in the new Italian penal
code. And at Murcia, in Spain, trials for blasphemy have lately
been re-established.
Mittermaier observed that, if in England and Scotland there were
far fewer cases of false witness, perjury, and resistance to
authority than in Ireland and on the Continent, this must be due
in great measure to national character, which is one of the
hereditary elements of normal as well as of abnormal and criminal
life.
Thus even apart from statistics we can satisfy ourselves that
crimes and punishments belong to two different spheres; but when
statistics support the teaching of history, no doubt can remain as
to the very slight (I had almost said the absence of any)
deterrent effect of punishments upon crime.
We may indeed derive a telling proof from statistical
records, by referring to the progress of repression in France,
over a period of sixty years, as I have already done in my
``Studies'' previously quoted.
When we speak of the repression of crime, we must first of all
distinguish between that which is due to the general character of
penal legislation, more or less severe, and that which is secured
by the administration by the judges of the law as it is. Now, so
far as legislation is concerned, the growth of crime in France
certainly cannot be attributed to the relaxation of punishment.
The legislative reforms which have taken place, especially in 1832
and 1863, on the general revision of the penal code, modified
punishments to some extent, but with the definite purpose and
result, as shown by the same official records of criminal
statistics, of strengthening the repressive power of the law by
providing for the application of less aggravated punishments. The
repugnance of juries and judges against excessive punishments, and
their preference for acquittal, is, indeed, a psychological law.
Moreover, it is well known that if there is in Europe a penal code
less mild than any of the rest, it is that of France, which is the
oldest of those now in force, and still retains much of the
military rigour of its origin. And it must be added that for
certain crimes, as for rapes and indecent assaults, which are
nevertheless constantly increasing in France, the punishments have
been increased by several successive enactments. The same is true
of extortion by threats of exposure, which occurs more and more
frequently, as M. Joly also observes, in spite of the severe
punishments of the law of 1863.
The question, therefore, is reduced to judicial repression, the
progress whereof must be observed in the past half-century, for it
has evidently the greatest influence upon crime. Laws, in fact,
have no real operation if they are not applied more or less
rigorously; for in the social strata which contribute most to
criminality the laws are known only by their practical
application, which is also the only truly defensive function,
carrying with it a special preventive of the repetition of the
crime by the person condemned.
Thus the arguments of jurists and legislators have not much value
for the criminal sociologist when they are based solely on the
psychological illusion that the dangerous classes trouble
themselves about the shaping of a penal code, as the more
instructed and less numerous classes might well do. The dangerous
classes attend to the sentences of the judges, and still more to
the execution of those sentences, than to the articles of a code.
In this connection I cannot agree with the forecast of Garofalo as
to the perilous effect of the abolition of capital punishment in
Italy on the imagination of the people; for he was well aware
that, though it is defined in various articles of the old code,
and in about sixty sentences every year, the punishment of death
has not been carried out, which is the essential point, for the
last fifteen years.
The elements which determine the greater or less severity of
judicial repression are of two kinds:--
1. The ratio of persons acquitted to the total number of
prisoners put on their trial.
2. The ratio of the severest punishments to the total number of
prisoners condemned.
Certainly the proportion of acquittals ought not to indicate a
difference in the severity of repression as such, for condemnation
or acquittal ought to point merely to the certainty or otherwise
of guilt, the sufficiency or insufficiency of the evidence. But,
as a matter of fact, the proportional increase of convictions does
partly represent greater severity on the part of the judges, and
still more of the juries, who display it by attaching weight to
somewhat unconvincing evidence, or in too readily admitting
circumstances which tend to aggravate the offence. This is
confirmed also by the rarity of acquittals in cases of contumacy.
Of these two factors the former is certainly the more important,
for it is a psychological law that man, in regard to punishment as
to any other kind of suffering, is more affected by the certainty
than by the gravity of the infliction. And it is to the credit of
criminal theorists of the classical school that they have steadily
maintained that a mild yet certain punishment is more effectual
than one which, being severe in itself, holds out a stronger hope
of escaping it. Nevertheless it is a fact that they have carried
the theory too far, by seeking to obtain excessive mitigations and
abbreviations of punishment, without exerting themselves to secure
certainty by reforms of procedure and police administration.
The diminution of the rate of acquittal is evident and continuous,
both at the Assizes and in the Tribunals, except for the last
quadrennial period. This may of course indicate a more careful
management of the trials by the judges; but it certainly shows
an undoubted tendency towards increased judicial severity,
which, meanwhile, has not arrested the growth of crime.
PERCENTAGE OF ACQUITTALS IN FRANCE.
Tried in
Assize Courts. Tribunals. Total
1826-30 . . . . . . 39 . . . . . . 31 . . . . . . 32
1831-5 . . . . . . 42 . . . . . . 28 . . . . . . 30
1836-40 . . . . . . 35 . . . . . . 22 . . . . . . 23
1841-5 . . . . . . 32 . . . . . . 18 . . . . . . 19
1846-50 . . . . . . 36 . . . . . . 16 . . . . . . 17
1851-5 . . . . . . 28 . . . . . . 12 . . . . . . 13
1856-60 . . . . . . 24 . . . . . . 10 . . . . . . 7
1861-5 . . . . . . 24 . . . . . . 9 . . . . . . 6
1866-9 . . . . . . 23 . . . . . . 17 . . . . . .
The most constant general fact shown by these data is in all cases
the very remarkable increase of slighter delinquencies, side by
side with constancy or slight diminution in crimes against
the person, and a large diminution in crime against property.
This is seen in France, England, Belgium, whilst there is an
increase both of crimes and offences in Austria.
Behind the general fact, however, we must distinguish between the
actual and the apparent.
On the one hand, the decrease of more serious crime against
property is simply due to prisoners electing to be sentenced by
the inferior court, which is at the discretion of the Tribunals in
France, but legally established in Belgium, by the laws of 1838
and 1848, and in England by the Acts of 1856 and 1878--an election
of the slighter but more certain punishment of the magistrates in
preference to going before a jury. Indeed, crimes against the
person, in which there is less power of election, do not exhibit
so marked a decrease; and accordingly we see that in Belgium the
increase of ``correctionalised'' crimes is due far more to crimes
against property (62 per cent in 36 years) than to those against
the person (9 per cent. ).
On the other hand, the growth of slighter delinquency is partly
the effect of special enactments, which are constantly creating
new infractions, offences or contraventions. For France may be
mentioned the law of 1832 on eluding supervision, that of 1844 on
the game laws, that of 1857 on the false description of goods for
sale, of 1845 on railway offences, of 1849 on the expulsion of
refugees, of 1873 on drunkenness, and of 1874 on requisition of
horses. I dealt with the statistical results of these laws, and
with the influence of the increasing number of police
agents, in my ``Studies on Criminality in France'' (Rome,
1881); and I will here add only a single observation. If it is
true, as M. Joly says, that other laws, passed since 1826, have
extinguished a few offences, or at least have diminished their
frequency under less severe regulations, yet it is also true that
the new infractions created in the past half-century show far
higher numbers than those of the infractions which have been
extinguished or rendered less easy. So that amongst the 297 per
cent. of increase on the offences tried in France between 1826 and
1887, the element due to legal creation of new infractions must
not be ignored.
It cannot, however, be denied that for certain more frequent
offences we have a real and very noteworthy increase, apart from
any legislative or statistical cause of disturbance.
The same observation may be made in regard to England. There also
the increase of 76 per cent, during thirty years of offences tried
summarily is due in part to new infractions, created by special
legislation, and especially by the Education Act of 1873, under
which there were more than forty thousand infractions in 1878, and
more than sixty-five thousand in 1886.
In regard to this delinquency in England (wherein are included,
over and above real offences, certain infractions corresponding to
the police contraventions of the Italian, French, Belgian and
Austrian codes) it is to be observed that the increase of 76 per
cent. in thirty years is due rather to contraventions than to
offences. And this would establish a remarkable difference
between the variations of delinquency in England and in France.
If we analyse the record of infractions tried summarily in
England, we find that contraventions of the law in respect of
drunkenness account for most of this increase (from 82,196 in 1861
to 183,221 in 1885 and 165,139 in 1886). On the other hand,
offences against the person (assaults) and against property
(stealing, larceny, malicious offences) have not shown so large an
increase.
In fact, if we compare the variations in assaults and thefts in
France and England, we have the following figures:--
ENGLAND.
1861-3. 1879-81.
Prisoners tried summarily for assaults . . . . . . 100 102
Ditto for stealing, larceny, and malicious
offences . . . . . . . . . . . . . . . . . . . . . 100 110
FRANCE.
Cases tried by the Tribunals:
For assault and wounding . . . . . . . . . . . . . . . 100 134
For simple theft . . . . . . . . . . . . . . . . . . . . . 100 116
So that in England not only the total delinquency, but more
especially the commoner offences against the person and against
property show a slighter increase than that which has been
established for the same period in France. Whilst we do not
overlook the greater increase of crimes against the person in
England (coinciding, of course, with the doubling of the
population in fifty-five years), this fact seems to me to prove
the salutary influence of English organisations against certain
social factors which lead up to delinquency (such as the care of
foundlings, the guardianship of the poor, and so forth),
notwithstanding the great development of economic activity, which
is assuredly in no way inferior to that of France. The figures
strengthen my conclusions as to the social factors of crime, and
refute the optimistic theory of Poletti.
But the actual participation of each country in the general
increase of crime in Europe is determined by other causes, outside
of the artificial influences of different codes of law. And the
most general and constant of these causes, in all the various
physical and social environments, is the annual increase of
population, which, by adding to the density of the inhabitants of
each country, multiplies their material and legal relations to one
another, and, consequently, the objective and subjective
constituents of crime.
Taking the official Italian figures, which are also relied on by
M. Levasseur, we find, for the periods corresponding to the
variations of criminality, the following rates of increase in the
population of the different countries. Ireland shows a decrease,
owing to emigration.
Increase.
Italy 22,104,789 in 1863--30,947,306 in 1889 40 per cent.
'' 27,165,553 in 1873--30,565,188 in 1888 12 ''
France 31,858,937 in 1826--38,218,903 in 1887 20 per cent.
Belgium 4,072,619 in 1840-- 5,583,278 in 1885 44 ''
Prussia 21,046,984 in 1852--26,614,428 in 1878 26 ''
Germany 45,717,000 in 1882--47,540,000 in 1887 4 ''
England 13,896,797 in 1831--27,870,586 in 1886 101 ''
'' 20,066,224 in 1861--27,870,586 in 1886 39 ''
Austria 20,217,531 in 1869--23,070,688 in 1886 14 ''
Ireland 5,798,967 in 1861-- 4,777,545 in 1888 decrease 17 ''
It must, however, be observed, with regard to this increase of the
population, firstly that it tells as a factor of criminality
only in so far as it is not neutralised, wholly or in part, by
other influences, mainly social, which prevent crime or render it
less grave. Secondly, it is not right merely to compare the
proportional rates of increase in the population with those of
crime, as was done for instance by M. Bodio, who said that in
Italy, from 1873 to 1883, ``since the population had increased by
7. 5 per cent. , crime might have increased during the same time by
7. 5 per cent. , without its being fair to say that it had actually
increased. '' In point of fact, as M. Rossi remarked, since in
Italy, and almost all the European States, the growth of the
population is due to the excess of births over deaths (for
emigration is more numerous than immigration), it is evident that,
when we confine our attention to short periods, the addition to
the population, consisting of children under ten or twelve years,
does not increase crime in an appreciable degree. The deaths, on
the other hand, must be subtracted from all stages of human life,
but especially from the number of those who can and do commit
crimes and offences.
Now, as we cannot in this place go into detail, I must confine
myself to the statement of a few characteristic facts, as
illustrated by European crime. Thus we perceive the influence of
the great famine of 1846-7 on crimes against property in France
and Belgium; the rapid oscillations of crime in Ireland,
indicating the unstable political and social conditions of the
country; and the parallel movements of crime in, France and
Prussia. We see, indeed, a constant diminution of crime for the
period between 1860 and 1870, followed (after the
statistical disturbance of the terrible year 1870-1) by a period
of serious and continued increase of crime, resulting from social
and economic conditions, as shown especially by the increase of
vagrancy and theft since 1875.
All these general facts go to prove the close and intimate
connection between crime and the aggregate of its various
constituents. So that, without pursuing more detailed inquiries
into certain social factors of crime, which are capable of
statistical enumeration, such as the increase in the number of the
police, the abundance or scarcity of corn and wine, the spread of
drunkenness, family circumstances, increase of personal
possessions, the facility or otherwise of the settlement of
disputes, commercial and industrial crises, the rate of wages, the
variation from year to year of the general conditions of
existence, and so forth, coincident with the development of
education, encouragements to thrift and the organisation of
charity, we must now proceed to draw from these statistical data
the most important conclusions of criminal sociology.
I.
Criminal statistics show that crime increases in the aggregate,
with more or less notable oscillations from year to year, rising
or falling in successive waves. Thus it is evident that the level
of criminality in any one year is determined by the different
conditions of the physical and social environment, combined with
the hereditary tendencies and occasional impulses of the
individual, in obedience to a law which I have called, in analogy
with chemical phenomena, the law of criminal saturation.
Just as in a given volume of water, at a given temperature, we
find a solution of a fixed quantity of any chemical substance, not
an atom more or less, so in a given social environment, in certain
defined physical conditions of the individual, we find the
commission of a fixed number of crimes.
Our ignorance of many physical and psychical laws and of
innumerable conditions of fact, will prevent us from obtaining a
precise view of this level of criminality. But none the less is
it the necessary and inevitable result of a given physical and
social environment. Statistics show us, indeed, that the
variations of this environment are always attended by
consequential and proportional variations of crime. In France,
for instance (and the observation will be found to apply to every
country which possesses an extended series of criminal
statistics), the number of crimes against the person varies but
little in sixty-two years. The same thing holds good for England
and Belgium, because their special environment is also less
variable, by reason that hereditary dispositions and human
passions cannot vary profoundly or frequently, except under the
influence of exceptional disturbances of the weather, or of social
conditions. In fact, the more serious variations in respect of
crimes against the person in France have taken place either during
political revolutions, or in years of excessive heat, or of
exceptional abundance of meat, grain, and wine. This is
illustrated by the exceptional increase of crime from 1849 to
1852. Minor offences against the person, on the contrary, which
are more occasional, assaults and wounding, for example, vary in
the main, as to their annual oscillations, with the abundance of
the wine harvest, whilst in their oscillations from month to month
they display a characteristic increase during the vintage periods,
from June to December, notwithstanding the constant diminution of
other offences and crimes against the person.
On the other hand, crimes against property, and still more
offences against property, show wide oscillations on account of
the variability of the special environment, which is almost always
in a condition of unstable equilibrium, as in periods of scarcity,
and of commercial, financial and industrial crises, and so forth,
whilst they are subject also to the influence of the physical
environment. Crimes and offences against property display
extraordinary increases in the severest winter seasons, and
diminutions in milder winters.
And this correspondence between the more general, powerful, and
variable physical and social factors of crime, as well as
its more characteristic manifestations such as thefts, wounding,
and indecent assaults, is so constant and so direct that, when I
was studying the annual movement of criminality in France, and
perceived some extraordinary oscillation in the crimes and
offences, I foresaw that in the annals of the year I should find
mention of an agricultural or political crisis, or an exceptional
winter or summer in the records of the weather. So that with a
single column of a table of criminal statistics I was able to
reconstruct the historical condition of a country in its more
salient features. In this way psychological experiment again
confirmed the truth of the law of criminal saturation.
Not only so, but it may be added that as, in chemistry, over and
above the normal saturation we find that an increased temperature
of the liquid envelopes an exceptional super-saturation, so in
criminal sociology, in addition to the ordinary saturation we are
sometimes aware of an excess of criminal saturation, due to the
exceptional conditions of the social environment.
Indeed it is to be observed not only that the main and typical
criminality has a sort of reflex criminality depending upon it,
but also that an increase of more serious or more frequent crimes
induces a crop of resistance to and assaults upon the guardians of
public order, together with false witness, insults, avoidance of
supervision, absconding, and the like. Certain crimes and
offences also have their complementary offences, which from being
consequences become in their turn the causes of new offences.
Thus concealment and purchase of stolen goods increase
simultaneously with theft; homicide and wounding lead to the
illegal carrying of arms; adultery and abusive language to duels,
and so forth.
Beyond this there are sundry kinds of excessive criminal
saturations which are exceptional, and therefore transitory.
Ireland and Russia present us with conspicuous examples in their
political and social crimes; and similarly America, during
election contests. So in France before and after December 2 1851,
the harbouring of criminals, which in no other quadrennial period
from 1826 to 1887 exceeds a record of fifty, rises in 1850-53 as
high as 239. So during the famine of 1847, theft of grain rises
in France to forty-two in a single year, whilst for half a century
it barely reaches a total of seventy-five. It is notorious,
again, that in years of dear provisions, or severe winters, a
large number of thefts and petty offences are committed for the
sole object of securing maintenance within the prison walls. And
in this connection I have observed in France that other offences
against property decrease during a famine, by an analogous
psychological motive, thus presenting a sort of statistical
paradox. Thus, for example, I have found that as oidium and
phylloxera are more effective than severe punishments in
diminishing the number of assaults and cases of unlawful wounding,
so famine succeeds better than the strongest bars, or dogs kept
loose in the prison yards, in preventing the escape of prisoners,
who at such times are detained by the advantage of being supported
at the public expense.
For a parallel reason in 1847, a famine year, whilst all
crimes and offences against property increased in an extraordinary
fashion, only the crimes of theft and breach of confidence by
household servants showed a characteristic decrease, because such
persons were deterred by the fear of being dismissed by their
employers during the time of distress. The figures are as
follows:--
FRANCE (Assizes). 1844. 1845. 1846. 1847.
Crimes against property . . . 3,767 3,396 3,581 4,235
Breach of confidence by
household servants . . . . . . 136 128 168 104
Thefts by the same . . . . . . 1,001 874 924 896
M. Chaussinand adds, by way of confirmation of my statement that
during economic crises, such as famine and high prices of grain,
the number of cases of escape from justice also decreases, FOR
``thieves and tramps prefer arrest, in order to escape from the
misery which afflicts them outside the prison walls. ''
Two fundamental conclusions of criminal sociology may be drawn
from this law of criminal saturation.
The first is that it is incorrect to assert a mechanical
regularity of crime, which from Quetelet's time has been much
exaggerated. There has been a too literal insistance on his
famous declaration that ``the budget of crime is an annual
taxation paid with more preciseness than any other''; and that it
is possible to calculate beforehand how many homicides, poisoners,
and forgers we shall have, because ``crimes are generated every
year in the same number, with the same punishments, in the same
proportions. '' And one constantly meets with this echo of the
statisticians, that ``from year to year crimes against the person
vary at the most by one in twenty-five, and those against
property by one in fifty''; or, again, that there is ``a law of
limitation in crime, which does not vary by more than one in
ten. ''
This opinion, originated by Quetelet and other statisticians after
an inquiry confined to the more serious crimes, and to a very
short succession of years, has already been refuted, in part by
Maury and Rhenisch, and more plainly by Aberdare, Mayr,
Messedaglia and Minzloff.
In fact, if the level of criminality is of necessity determined by
the physical and social environment, how could it remain constant
in spite of the continual variations, sometimes very considerable,
of this same environment? That which does remain fixed is the
proportion between a given environment and the number of crimes:
and this is precisely the law of criminal saturation. But the
statistics of criminality will never be constant to one rule from
year to year. There will be a dynamical but not a statical
regularity.
Thus the element of fixity in criminal sociology consists in
asserting, not the fatality or predestination of human actions,
including crimes, but only their necessary dependence upon their
natural causes, and therewith the possibility of modifying effects
by modifying the activity of these causes. And, indeed, even
Quetelet himself recognised this when he said, ``If we change the
social order we shall see an immediate change in the facts which
have been so constantly reproduced. Statisticians will then have
to consider whether the changes have been useful or injurious.
These studies therefore show how important is the mission of
the legislator, and how responsible he is in his own sphere for
all the phenomena of the social order. ''
The second consequence of the law of criminal saturation, one of
great theoretical importance, is that the penalties hitherto
regarded, save for a few platonic declarations, as the best
remedies for crime, are less effectual than they are supposed to
be. For crimes and offences increase and diminish by a
combination of other causes, which are far from being identical
with the punishments lightly written out by legislators and
awarded by judges.
History affords us various impressive examples.
The Roman Empire, when society had fallen into extreme corruption,
recalling many symptoms of our own epoch, vainly promulgated laws
which visited celibacy, adultery, and incest--``venus
prodigiosa''--with ``the vengeance of the sword and punishments of
the utmost severity. '' Dio Cassius (``Hist. Rom. ,'' lxxvi. 16)
says that in the city of Rome alone, after the law of Septimus
Severus, there were three thousand charges of adultery. But the
stringent laws against these crimes continued to the days of
Justinian, which shows that the crimes had not been checked; and,
as Gibbon says (``Decline and Fall,'' ch. 44), the Scatinian law
against ``venus nefanda'' had fallen into abeyance through lapse
of time and the multitude of offenders. Yet we see in our own
days, as in France, that there are some who would oppose celibacy
with no other remedy than a law passed for the purpose.
Since mediaeval times the increasing gentleness of manners
has caused a diminution of crimes of blood, once so numerous that
there was need of sundry ``truces'' and ``peaces,''
notwithstanding the harsh penalties of previous centuries. And Du
Boys called Cettes simple because, after giving a table of
shocking punishments in the Germany of his day (the fifteenth
century), he marvelled that all these pains and torments had not
prevented the increase of crimes.
Imperial Rome deluded herself with the idea that she could stamp
out Christianity with punishments and tortures, which, however,
only seemed to fan the flame. In the same way Catholic Europe
hoped to extinguish Protestantism by means of vindictive
persecution, and only produced the opposite effect, as always
happens. If the Reformed faith does not strike root in Italy,
France, and Spain, that must be explained by psychological reasons
proper to those nations, independently of the stake and of
massacres, for it did not strike root even when religious belief
was liberated from its fetters. This does not prevent all
governments in every land from continuing to believe that, in
order to arrest the spread of certain political or social
doctrines, there is nothing better than to pass exceptional penal
laws, forgetting that, with ideas and prejudices just as with
steam, compression increases the expansive force.
Popular education has swept away the so-called crimes of magic and
witchcraft, though they had withstood the most savage punishments
of antiquity and mediaeval times.
Blasphemy, in spite of the slitting of the nose, tongue, and
lips, enacted by the penal laws, and continued in France from
Louis XI. to Louis XV. , was very common in the middle ages, being
(like witchcraft, trances, and self-immurement) a pathological or
abnormal manifestation of religious emotion, which in those times
had an extraordinary development. And the habit of blasphemy
diminished under the psychological and social evolution of our own
days, precisely when it ceased to be punished. Or, rather, it
continued to this day, as in Tuscany, where the Tuscan penal code
(Art. 136), which survived until December 31, 1889, still punished
it with five years' imprisonment. The illusion as to the efficacy
of punishment is so deeply rooted that a proposal was made in the
Senate, in 1875, to include this penalty in the new Italian penal
code. And at Murcia, in Spain, trials for blasphemy have lately
been re-established.
Mittermaier observed that, if in England and Scotland there were
far fewer cases of false witness, perjury, and resistance to
authority than in Ireland and on the Continent, this must be due
in great measure to national character, which is one of the
hereditary elements of normal as well as of abnormal and criminal
life.
Thus even apart from statistics we can satisfy ourselves that
crimes and punishments belong to two different spheres; but when
statistics support the teaching of history, no doubt can remain as
to the very slight (I had almost said the absence of any)
deterrent effect of punishments upon crime.
We may indeed derive a telling proof from statistical
records, by referring to the progress of repression in France,
over a period of sixty years, as I have already done in my
``Studies'' previously quoted.
When we speak of the repression of crime, we must first of all
distinguish between that which is due to the general character of
penal legislation, more or less severe, and that which is secured
by the administration by the judges of the law as it is. Now, so
far as legislation is concerned, the growth of crime in France
certainly cannot be attributed to the relaxation of punishment.
The legislative reforms which have taken place, especially in 1832
and 1863, on the general revision of the penal code, modified
punishments to some extent, but with the definite purpose and
result, as shown by the same official records of criminal
statistics, of strengthening the repressive power of the law by
providing for the application of less aggravated punishments. The
repugnance of juries and judges against excessive punishments, and
their preference for acquittal, is, indeed, a psychological law.
Moreover, it is well known that if there is in Europe a penal code
less mild than any of the rest, it is that of France, which is the
oldest of those now in force, and still retains much of the
military rigour of its origin. And it must be added that for
certain crimes, as for rapes and indecent assaults, which are
nevertheless constantly increasing in France, the punishments have
been increased by several successive enactments. The same is true
of extortion by threats of exposure, which occurs more and more
frequently, as M. Joly also observes, in spite of the severe
punishments of the law of 1863.
The question, therefore, is reduced to judicial repression, the
progress whereof must be observed in the past half-century, for it
has evidently the greatest influence upon crime. Laws, in fact,
have no real operation if they are not applied more or less
rigorously; for in the social strata which contribute most to
criminality the laws are known only by their practical
application, which is also the only truly defensive function,
carrying with it a special preventive of the repetition of the
crime by the person condemned.
Thus the arguments of jurists and legislators have not much value
for the criminal sociologist when they are based solely on the
psychological illusion that the dangerous classes trouble
themselves about the shaping of a penal code, as the more
instructed and less numerous classes might well do. The dangerous
classes attend to the sentences of the judges, and still more to
the execution of those sentences, than to the articles of a code.
In this connection I cannot agree with the forecast of Garofalo as
to the perilous effect of the abolition of capital punishment in
Italy on the imagination of the people; for he was well aware
that, though it is defined in various articles of the old code,
and in about sixty sentences every year, the punishment of death
has not been carried out, which is the essential point, for the
last fifteen years.
The elements which determine the greater or less severity of
judicial repression are of two kinds:--
1. The ratio of persons acquitted to the total number of
prisoners put on their trial.
2. The ratio of the severest punishments to the total number of
prisoners condemned.
Certainly the proportion of acquittals ought not to indicate a
difference in the severity of repression as such, for condemnation
or acquittal ought to point merely to the certainty or otherwise
of guilt, the sufficiency or insufficiency of the evidence. But,
as a matter of fact, the proportional increase of convictions does
partly represent greater severity on the part of the judges, and
still more of the juries, who display it by attaching weight to
somewhat unconvincing evidence, or in too readily admitting
circumstances which tend to aggravate the offence. This is
confirmed also by the rarity of acquittals in cases of contumacy.
Of these two factors the former is certainly the more important,
for it is a psychological law that man, in regard to punishment as
to any other kind of suffering, is more affected by the certainty
than by the gravity of the infliction. And it is to the credit of
criminal theorists of the classical school that they have steadily
maintained that a mild yet certain punishment is more effectual
than one which, being severe in itself, holds out a stronger hope
of escaping it. Nevertheless it is a fact that they have carried
the theory too far, by seeking to obtain excessive mitigations and
abbreviations of punishment, without exerting themselves to secure
certainty by reforms of procedure and police administration.
The diminution of the rate of acquittal is evident and continuous,
both at the Assizes and in the Tribunals, except for the last
quadrennial period. This may of course indicate a more careful
management of the trials by the judges; but it certainly shows
an undoubted tendency towards increased judicial severity,
which, meanwhile, has not arrested the growth of crime.
PERCENTAGE OF ACQUITTALS IN FRANCE.
Tried in
Assize Courts. Tribunals. Total
1826-30 . . . . . . 39 . . . . . . 31 . . . . . . 32
1831-5 . . . . . . 42 . . . . . . 28 . . . . . . 30
1836-40 . . . . . . 35 . . . . . . 22 . . . . . . 23
1841-5 . . . . . . 32 . . . . . . 18 . . . . . . 19
1846-50 . . . . . . 36 . . . . . . 16 . . . . . . 17
1851-5 . . . . . . 28 . . . . . . 12 . . . . . . 13
1856-60 . . . . . . 24 . . . . . . 10 . . . . . . 7
1861-5 . . . . . . 24 . . . . . . 9 . . . . . . 6
1866-9 . . . . . . 23 . . . . . . 17 . . . . . .
