The tendency of the cla.s.sical theories on crime and prison discipline is in sharp contrast, for their ideal is the "uniformity of punishment" which lies at the base of all the more recent penal codes.

If for the cla.s.sical school the criminal is but an average and abstract type, the whole difference of treatment is, of course, reduced to a graduation of the "amount of crime" and the "amount of punishment." And then it is natural that this punitive dosing should be more difficult when the punishments are different in kind, and not very similar in their degrees of coincident afflictive and correctional power. Thus the ideal becomes a single punishment, apportioned first by the legislature and then by the judge, in an indefinite number of doses.

Here and there a solitary voice has been heard, even amongst the cla.s.sical experts, objecting to this tendency towards dogmatic uniformity; but it has had no influence. The question brought forward by M. D'Alinge at the Prison Congress in London (Proceedings, 1872, p. 327), "whether the moral cla.s.sification of prisoners ought to be the main foundation of penitentiary systems, either in a.s.sociation or on the cellular plan," which he himself decided in the affirmative, was not so much as discussed, and it was not even referred to at the successive Congresses at Stockholm (1878), Rome (1885), and St. Petersburg (1889). On the contrary, the Congress at Stockholm decided that, "reserving minor and special punishments for certain slight infractions of the law, or for such as do not point to the corrupt nature of their authors, it is desirable to adopt for every prison system the greatest possible legal a.s.similation of punishments by imprisonment, with no difference except in their duration, and the consequences following upon release."[20]

[20] Proceedings, i. 138-70, 551-7, 561-3. Now and then, however, a prison expert of more positive tendencies maintains "the very great use, or rather the scientific necessity, of the cla.s.sification of prisoners as a basis for the punitive and prison system" (Beltrani Scalia.)

To positivists, the "uniformity of punishment," even of mere detention, appears simply absurd, since it ignores the capital fact of different categories of criminals.

There must be h.o.m.ogeneity between the evil and its remedy; for, as Dumesnil says, "the prisoner is a moral (I would add a physical) patient, more or less curable, and we must apply to him the great principles of the art of medicine. To a diversity of ills we must apply a diversity of remedies."

In this connection, however, we must avoid the two extremes, uniformity of punishment and the so-called individualisation of punishment, the latter especially in fashion amongst American prison experts. No doubt it would be a desirable thing to apply a particular treatment to each convict, after a physical and psychological study of his individuality, and of the conditions which led him into crime; but this is not practicable when the number of prisoners is very great, and the managing staff have no adequate notions of criminal biology and psychology. How can a governor individualise the penal treatment of four or five hundred prisoners? And does not the cellular system, which reduces the characteristic manifestations of the personal dispositions of prisoners to a minimum, levelling them all by the uniformity of routine and silence, render it impossible to observe and get to know the special character of each condemned person, and so specialising the discipline? Where, too, are we to find the necessary governors and warders who would know how to discharge this difficult duty? The solid fact that particular houses of correction or punishment are in excellent condition when their governors have the psychological intuition of a De Metz, a Crofton, a Spagliardi, or a Roukawichnikoff, and languish when he departs, strikingly demonstrates that the whole secret of success lies in the spirit of a wise governor, skilled in psychology, rather than in the slender virtue of the cell.

Just as an imperfect code with good judges succeeds better than a "monumental" code with foolish judges, so a prison system, however ingenious and symmetrical, is worthless without a staff to correspond.

And as the question of the staff is always very serious, especially for financial reasons, I believe that, instead of the impracticable idea of individualisation in punishment, we ought to subst.i.tute that of cla.s.sification, which is equally efficacious and more easily applied. It cannot be denied that criminal anthropologists are not all agreed on the cla.s.sification of criminals. But I have already shown that the differences between proposed cla.s.sifications are only formal and of secondary importance; and again, the number of those who agree to the cla.s.sification which I have proposed increases day by day.

Before inquiring how we can practically organise the positive system of social defence on the basis of this anthropological cla.s.sification of criminals, we must bear in mind two rules, common to all the technical proposals of the same system.

First, care must be taken that segregation does not become or continue to be (as it is too often at present) a welcome refuge of idleness and criminal a.s.sociation, instead of a deprivation.

Penitentiaries for condemned prisoners-the cla.s.sical prison experts make no distinction between their cells for prisoners before trial and those for convicts!-should not be so comfortable as to excite the envy (a vast injustice and imprudence) of the honest and ill-fed rural labourer vegetating in his cottage, or of the working-man pining in his garret.

Secondly, the obligation to labour should be imperative for all who are in prison, except in case of sickness. Prisoners should pay the State, not as now for their tobacco and wine, but for food, clothes, and lodging, whilst the remainder of their earnings should go to indemnify their victims.

The cla.s.sical theory declares that "the State," as Pessina writes, "being compelled to adopt deprivation of liberty as the princ.i.p.al means of penal repression and retribution, contracts an absolute obligation to provide those whom they punish in this way not only with bodily sustenance, but also with the means of supplying their intellectual and moral needs." So the State maintains in idleness the majority even of those who are said to be "sentenced to hard labour," and the offence, after it has served the turn of the offender, further a.s.sures him free lodging and food, shifting the burden on to honest citizens.

I cannot see by what moral or legal right the crime ought to exempt the criminal from the daily necessity of providing for his own subsistence, which he experienced before he committed the crime, and which all honest men undergo with so many sacrifices. The irony of these consequences of the cla.s.sical theories could not, in fact, be more remarkable. So long as a man remains honest, in spite of pathetic misery and sorrow, the State takes no trouble to guarantee for him the means of existence by his labour. It even bans those who have the audacity to remind society that every man, by the mere fact of living, has the right to live, and that, as work is the only means of obtaining a livelihood, every man has the right (as all should recognise the duty) of working in order to live.

But as soon as any one commits a crime, the State considers it its duty to take the utmost care of him, ensuring for him comfortable lodging, plenty of food, and light labour, if it does not grant him a happy idleness! And all this, again, in the name of eternal and retributive justice.

It may be added that our proposals are the only way of settling the oft-recurring question as to the economic compet.i.tion (by the price of commodities), and the moral compet.i.tion (in the regularity of work) which prison labour unjustly wages with free and honest labour. As a matter of fact, as prisoners can only remain idle or work, they must clearly be made to work. But they must be made to work at trades which come less into compet.i.tion with free labour and it is especially necessary to give prisoners wages equal to those of free labourers, on condition that they pay the State for their food, clothes, and lodging, whilst the remainder goes to indemnify their victims.

Over the prison gates I should like to carve that maxim of universal application: "He who will not work, neither shall he eat."

V.

Since the novel proposals put forward half a century ago, amongst others by doctors Georget and Brierre de Boismont, a whole library of volumes has been published in favour of criminal lunatic asylums. A few voices here and there were heard in opposition or reserve, but these have almost entirely ceased.

Criminal lunatic asylums were adopted in England as early as 1786. In 1815 Bethlehem Hospital was appropriated to criminal lunatics, and the Broadmoor Asylum was founded in 1863. Similar asylums exist at Dundrum in Ireland (1850), at Perth in Scotland (1858), at New York (1874), and in Canada (1877).

On the continent of Europe there is not to this day a regular asylum for mad criminals, though France, after an experiment in treating condemned madmen at Bicetre, opened a separate wing for them in the prison at Gaillon. Holland has a.s.signed to them the hospital of Bosmalen (Brabant); Germany has special wards in the establishments at Waldheim, Bruchsaal, Halle, and Hamburg; and Italy, after founding a special ward in 1876, at the establishment for relapsed prisoners at Aversa, has converted the Ambrogiana establishment at Montelupo in Tuscany, into an asylum for insane convicts, and for prisoners under observation as being of unsound mind. The new Italian penal code, though not openly recognising the foundation of asylums for criminals acquitted on the ground of insanity, has, in its general spirit of eclecticism, given judges the power of handing them over to the competent authority when it would be dangerous to release them (Art. 46). At the Montelupo Asylum criminals acquitted on the ground of insanity are also detained, at first under observation, then by a definite order from the president of the Tribunal, who can revoke his order on the pet.i.tion of the family, or of the authorities.

The inquiry into existing legislation on insane criminals, undertaken by the "Societe Generale des prisons de Paris," showed that in France, Germany, Austria-Hungary, Croatia, Belgium, Portugal, and Sweden, the authors of crimes or offences who are acquitted on the ground of insanity are withdrawn from all control by the judicial authority, and entrusted to the more or less regular and effectual control of the administrative authority. In England, Holland, Denmark, Spain, and Russia, on the contrary, the judicial authority is empowered and even compelled to order the seclusion of these individuals in an ordinary or a criminal lunatic asylum.

Of the objections raised against this form of social defence against insane criminals, I pa.s.s over that of the cost, which is considerable; for even from the financial point of view I believe that the actual system, which gives no guarantee of security against madmen with criminal tendencies, is more costly to the administration, if only by reason of the damage which they cause. I also pa.s.s over the other objection, based on the violent scenes which are said to be inseparable from the a.s.sociation of such prisoners; for experience has shown that forebodings are ill founded in regard to criminal asylums where the inmates are cla.s.sified according to their tendencies, under the direction of a staff with special knowledge, who are able to prevent such outbreaks. In ordinary asylums, on the other hand, a few insane criminals are sufficient to render the maintenance of order very difficult, and their inevitable and frequent outbreaks have dire effects on the other patients.

The most serious and repeated difficulties in regard to lunatic asylums spring from the very principles of the defensive function of society.

It is said in the first place that the author of a dangerous action is either a madman or else a criminal. If he is a madman, he has nothing to do with penal justice-so Fabret, Mendel, and others have said; his action is not a crime, for he had no control over himself, and he ought to go to an ordinary asylum, special measures being taken for him, as for every other dangerous madman. Or else he is a criminal, and then he has nothing to do with a lunatic asylum, and he ought to go to prison.

But there is a fallacy in this dilemma, for it leaves out the intermediate cases and types, where particular individuals are at the same time mad and criminal. And even if it were a question of madmen only, the logical consequence would not be to bar out special asylums, for it seems clear that if ordinary madmen (not criminals, that is, not the authors of dangerous actions) ought to go to an ordinary asylum, criminal madmen, or madmen with a tendency to commit dangerous or criminal actions, as well as those who have committed them, ought to go to a special asylum for this category of madmen. For, on the other hand, we constantly see that administrative authorities which observe the same rules for the seclusion of ordinary and criminal madmen do not prevent the release of the latter, some time after the crime, when the disturbance of mind and even the recollection of the deed are all but effaced; and criminal madmen commit other violent or outrageous excesses, very soon after they are left exposed to their diseased tendencies.[21]

[21] M. Lunier, writing in 1881 of epileptics, and the method of treatment and aid appropriate to them, says that of 33,000 known epileptics in France, 5,200 only are in private or public asylums, whilst 28,000 remain with their families. From these figures it would appear very probable that these 28,000 epileptics left at liberty commit crimes and offences.

It may be answered that it is sufficient to have special wings in ordinary asylums, which would also get over the repugnance of families against the a.s.sociation of their quiet and harmless patients with murderous and outrageous madmen. But experience has already proved that these special wards do not work well, for it is too difficult with the same staff to apply such varied treatment and discipline as are necessary for ordinary and criminal lunatics.

Fabret says that "a so-called criminal, when he is seen to be mad, should cease to be regarded as a criminal, and ought purely and simply to resume his ordinary rights."

But, in the first place, if a madman is distinguished from all other inoffensive madmen by the grave fact of having killed, or burned, or outraged, it is clear that he cannot "purely and simply" return to the same kind of treatment which is given to harmless lunatics.

The truth is that this argument applies to a large number of ideas which science is continually weeding out, and which have proceeded on the a.s.sumption that madness is an involuntary misfortune which must be treated, and that crime is a voluntary fault which must be chastised. It is evident on the other hand that crime as well as folly, being the result of abnormal conditions of the individual, and of the physical and social environment, is always a question for social defence, whether it is or is not accompanied in the criminal by a more or less manifest and clinical form of mental malady.

The same reply holds good for the second objection to asylums for criminal madmen, when it is said that a madman cannot, for the sole reason that he has killed or stolen, be shut up indefinitely, perhaps for ever, in an asylum.

Mancini, who was keeper of the seals, and at the same time a great criminal pleader, aptly expressed the ideas of the cla.s.sical school when replying to an interpellation of Deputy Righi on the foundation of criminal lunatic asylums:-"I could never understand how the same court, which is obliged by law to acquit upon a verdict of the jury that the accused is insane, and therefore not responsible, could also decree the compulsory seclusion in an asylum, for any period, of the same accused person... . Is it because he has committed a crime? But that is not true, for the man who did not know what he was doing, and who for that reason has been declared innocent before the law, and irresponsible, cannot have committed a crime. There is consequently no legal reason why he should lose the exercise and enjoyment of that liberty which is not denied to any other unfortunate beings who are diseased like himself."

It would be impossible to put more clearly the pure cla.s.sical theory on crime and punishment; but perhaps it would be equally impossible to show less solicitude for social defence against criminal attacks. For it is certain that the mad murderer "has committed no crime" from the ethical and legal point of view of the cla.s.sical school; but it is still more certain that there is a dead man, and a family left behind who may be ruined by the deed, and it is very probable that this homicide, "innocent before the law," will renew his outrage on other victims-and at any rate they are innocent.

And as for the indefinite period of seclusion in an asylum, it is well to remember, from the point of view of individual rights, that the formula with which a mad criminal is committed to an asylum "during her Majesty's pleasure" had its origin in England, in the cla.s.sic land of the habeas corpus-the sheet anchor of the ordinary citizen. Again, it is easy to see that the indefinite seclusion of mad criminals is rendered necessary by the same reasons which create the fundamental rule for criminals of every kind. It may therefore come to a question of allowing or disallowing the general principles of the positive school. But it cannot be denied that they are una.s.sailable, both in theory and in practice. Crime is a phenomenon as natural as madness-the existence of society compels the organised community to defend itself against every anti-social action of the individual-the only difficulty is to adapt the form and duration of this self- defence to the form and intensity (the motives, conditions, and consequences) of the action. Indefinite seclusion, therefore, in a special establishment is inevitable on account of the special condition of these individuals.

The practical considerations of social defence are so strong that the great majority of cla.s.sical criminal experts now accept criminal lunatic asylums, in spite of their manifest contradiction of the formal theories of moral responsibility, on the strength of which these asylums were, and still are, opposed by the intransigents of the cla.s.sical school. This is why the new Italian penal code, in spite of its progressive aim, had not the courage in 1889 to adopt them frankly; and in the definitive text, as in the ministerial draft, it took refuge in an eclectic arrangement which has already met with a crowd of obstacles, due to the vagueness of the principles inspiring the code.

These criminal lunatic asylums ought to be of two kinds, differing in their discipline, one for the insane authors of serious and dangerous crimes, such as homicide, incendiarism, rape, and the like; and the other for slighter crimes, such as petty theft, violent language, outrages on public decency, and the like. For the latter, seclusion should be shorter than for the others. Thus in England convicts are sent to the State Asylum at Broadmoor, whilst minor offenders are sent to a county asylum.

Persons thus confined should be (1) prisoners acquitted on the ground of insanity, or sentenced for a fixed period, at the preliminary inquiry; (2) convicts who become insane during the expiation of their sentence; (3) insane persons who commit crimes in the ordinary asylums; (4) persons under observation for weak intellect in special wards, who have been put on their trial, and given grounds for suspecting madness.

At Broadmoor, on December 31, 1867, there were 389 male patients and 126 female; and in 1883 there were 381 males and 132 females, thus cla.s.sified:-

Mad Criminals. Male. Female.

Murder ... ... ... ... ... 155 ... 85 Attempted murder... ... ... 111 ... 18 Parricide... ... ... ... ... 7 ... 6 Theft ... ... ... ... ... 23 ... 3 Mad Criminals. Male. Female.

Incendiarism ... ... ... ... 24 ... 1 Military offence ... ... ... 21 ... - Attempted suicide... ... ... 3 ... {?} In Germany, in the prison at Waldheim, the proportion of mad criminals to the corresponding cla.s.ses of ordinary criminals was as follows:- Percentage Crimes. In Prison. Insane.

Homicide, actual or attempted ... 74 ... 17.6 Murder and malicious wounding ... 51 ... 9.8 Highway robbery with violence ... 64 ... 12.5 Incendiarism ... ... ... ... ... 219 ... 6.8 Rape ... ... ... ... ... ... 52 ... 5.8 Indecent a.s.sault ... ... ... ... 299 ... 5.7 Perjury ... ... ... ... ... ... 220 ... 2.7 Military crimes ... ... ... ... 23 ... 21.7 Crimes against property ... ... ... 5,116 ... 1.9 Other offences ... ... ... ... 158 ... 0.6 -- -- Total ... ... 6,276 ... 2.7 That is to say, there was (1) a very large proportion of madmen amongst the military offenders, which may point to the effect of military life, or else a careless selection for conscription, or both causes taken together; and (2) a greater proportion of mad criminals amongst the more serious offenders, partly because the authors of crimes of violence are subjected to more strict and frequent observation for madness.

It seems to me that this fact, which is also confirmed by the figures for England, is the most cogent argument in favour of criminal lunatic asylums.

For born criminals, since, as Dr. Maudsley says, we are face to face, if not exactly with a degenerate species, at least with a degenerate variety of the human species, and the problem is to diminish their number as much as possible, a preliminary question at once arises, namely, whether the penalty of death is not the most suitable and efficacious form of social defence against the anti-social cla.s.s, when they commit crimes of great gravity.

It is a question which for a century past has divided the criminal experts and wearied the general public, with perhaps more sentimental declamations than positive contributions; a question revived by the positive school, which, however, only brought it forward, without discussing it, at the first Congress on Criminal Anthropology at Rome; whilst it has been recently settled by the new Italian penal code, which is the first code amongst the leading States to decree (January 1, 1890) the legal abolition of the death penalty, after its virtual abolition in Italy since the year 1876, except for military crimes.

Amongst the cla.s.sical experts, as amongst the positivists, there are those who would abolish and those who would retain the death penalty; but the disagreement on this subject is not equally serious in the two camps. For whilst the cla.s.sical abolitionists almost all a.s.sert that the death penalty is inequitable, the positivists are unanimous in declaring it legitimate, and only a few contest its practical efficacy.

It seems to me that the death penalty is prescribed by nature, and operates at every moment in the life of the universe. Nor is it opposed to justice, for when the death of another man is absolutely necessary it is legitimate, as in the cases of lawful self-defence, whether of the individual or of society, which is admitted by cla.s.sical abolitionists such as Beccaria and Carrara.

The universal law of evolution shows us also that vital progress of every kind is due to continual selection, by the death of the least fit in the struggle for life. Now this selection, in humanity as with the lower animals, may be natural or artificial. It would therefore be in agreement with natural laws that human society should make an artificial selection, by the elimination of anti-social and incongruous individuals.

We ought not, however, to carry these conclusions too far, for every problem has its relative bearings, and positive observation, unlike logic, does not admit simple and exact solutions. It must be observed that this idea of artificial selection, though true, would lead to exaggerated conclusions, if it were carried into the sociological field without reserve, and without the necessary balance between the interests and rights of the community and of individuals. If this idea were taken absolutely, indeed, it would render legitimate and even obligatory an ultra-Spartan elimination of all children born abortive or incurably diseased, or anti- social through their idiotcy or mental insanity.