On the other hand, to recognise that the death penalty may be legitimate as an extreme and exceptional measure is not to acknowledge that it is necessary in the normal conditions of social life. Now it cannot be questioned that in these normal conditions society may defend itself otherwise than by death, as by perpetual seclusion or transportation, the failure of which, by the escape of convicts, is too rare to be decisive against it.

The preventive and deterrent efficacy of the death penalty is very problematical when we examine it not by our own impressions as average human beings, calmly and theoretically, but with the data of criminal psychology, which is its only true sphere of observation. Every one who commits a crime is either carried away by sudden pa.s.sion, when he thinks of nothing, or else he acts coolly and with premeditation, and then he is determined in his action, not by a dubious comparison between the death penalty and imprisonment for life, but simply by a hope of impunity. This is especially the case with born criminals, whose main psychological characteristic is an excess of improvidence, combined with moral insensibility.

If a convict tells us that he fears death, this merely means that he has the momentary impression, which cannot, however, restrain him from crime, for here again, by the same psychological tendency, he will be subject only to the criminal temptation.

And if it is true that, when the criminal has been tried and condemned, he fears death more than imprisonment for life (always excepting condemned suicides, and those who by their physical and moral insensibility laugh at death up to the foot of the scaffold), it is none the less necessary to try and to condemn them.

Indeed statistics prove that the periodic variations of the more serious crimes is independent of the number of condemnations and executions, for they are determined by very different causes. Tuscany, where there has been no death penalty for a century, is one of the provinces with the lowest number of serious crimes; and in France, in spite of the increase of general crime and of population, charges of murder, poisoning, parricide, and homicide, dropped from 560 in 1826 to 430 in 1888, though the number of executions diminished in the same period from 197 to 9.

The death penalty is an easy panacea, but it is far from being capable of solving a problem so complex as that of serious crime. The idea of killing off the incorrigibles and the born criminals is easily conceived, and Diderot, in his Letter to Landois, maintained that it was a natural consequence of the denial of free-will, saying: "What is the grand distinction between man and man? Doing good and doing harm. The man who does harm ought to be extinguished, not punished." But as against this too facile notion we must look to experience, and to the other material and moral conditions of social life, for the necessary balance and completion.

I will not further discuss the death penalty, for it is by this time an exhausted question from the intellectual standpoint, and has pa.s.sed into the domain of prejudice for or against, and this prejudice is concerned rather with the more or less repugnant method of execution than with the penalty itself. In its favour there is the absolute, irrevocable, and instantaneous elimination from society of an individual who has shown himself absolutely unadaptable, and dangerous to society. But I hold that, if we would draw from the death penalty the only positive utility which it possesses, namely, artificial selection, then we must have courage enough to apply it resolutely in all cases where it is necessary from this point of view, that is to say, to all born criminals, who are the authors of the most serious crimes of violence. In Italy, for example, it would be necessary to execute at least one thousand persons every year, and in France nearly two hundred and fifty, in place of the annual seven or eight.

Otherwise the death penalty must be considered as an unserviceable and neglected means of terror, merely to be printed in the codes; and in that case it would be acting more seriously to abolish it.

So regarded it is too much like those motionless scarecrows which husbandmen set up in their fields, dotted about with the foolish notion that the birds will be frightened away from the corn. They may cause a little alarm at first sight; but by and by the birds, seeing that the scarecrow never moves and cannot hurt them, lose their fear, and even perch on the top of it. So it is with criminals when they see that the death penalty is never or very rarely applied; and one cannot doubt that criminals judge of the law, not by its formulation in the codes, but by its practical and daily application.

Since the deterrent efficacy of punishments in general, including the death penalty, is quite insignificant for the born criminals, who are insensible and improvident, the rare cases of execution will certainly not cure the disease of society. Only the slaughter of several hundred murderers every year would have a sensible result in the way of artificial selection; but that is more easily said than done. And I imagine that, at normal periods, in no modern and civilised State would a series of daily executions of the capital sentence be possible. Public opinion would not endure it, and a reaction would soon set in.[22]

[22] In every case I think that executions should take place in prison, and by means of a poison administered as soon as the sentence takes effect. In North America electricity has been tried, but executions by this process appear to be as horrible and repulsive as those by the guillotine, the garotte, the scaffold, or the rifle. (See the Medico-Legal Journal of New York, March and September, 1889.) From the "Summarised Information on Capital Punishment," published by the Howard a.s.sociation in 1881, I take the following figures on capital punishment in Europe and America:-

Death State. Sentences. Executions.

Austria (1870-9) ... ... ... ... ... 806 ... 16 France (1870-9) ... ... ... ... ... 198 ... 93 Spain (1868-77) ... ... ... ... ... 291 ... 26 Sweden (1869-78) ... ... ... ... ... 32 ... 3 Denmark (1868-77) ... ... ... ... ... 94 ... 1 Bavaria (1870-9) ... ... ... ... ... 240 ... 7 Italy (1867-76) ... ... ... ... ... 392 ... 34 Germany, North (1869-78) ... ... ... 484 ... 1 England (1860 79)... ... ... ... ... 665 ... 372 Ireland (1860-79) ... ... ... ... ... 66 ... 36 Scotland (1860-79 ... ... ... ... ... 40 ... 15 Australia and New Zealand (1870-9... 453 ... 123 United States, about 2,500 murders annually-about 100 executions and 100 lynchings annually.

In Finland, between 1824 and 1880 there was no execution. In Holland, Portugal, Roumania, and Italy, capital punishment is abolished by law; and in Belgium virtually. Switzerland also has abolished it, but a few cantons, under the influence of a few atrocious and recurrent crimes, revived it in their codes, but did not carry it out. In the United States it has been abolished in Michigan, Wisconsin, Rhode Island, and Maine. An inquiry into the legislation and statistics relating to murder in Europe and America was inst.i.tuted by Lord Granville in July, 1880 and the results were published in 1881. ("Reports on the Laws of Foreign Countries respecting Homicidal Crime.")

In a ma.n.u.script register of executions in the Duchy of Ferrara between 970 and 1870, I found that, excluding the nineteenth century, there were 5,627 executions in 800 years (3,981 for theft, and 1,009 for homicide), that is an average of 700 in each century, in the city of Ferrara alone. And at Rome, according to the records of the Convent of St. John the Beheaded, between 1500 and 1770 there were 5,280 executions, or 1,955 in each century, in the city of Rome alone. Now, if we consider the proportion of population in Ferrara and Rome to that of Italy as a whole, we reach an enormous number of executions in former centuries, which can scarcely have been fewer than four hundred every year.

These were serious applications of the death penalty, to which we certainly owe in some degree the purification of society by the elimination of individuals who would otherwise have swelled their criminal posterity.

In conclusion, if we wish to treat the death penalty seriously, and derive from it the only service of which it is capable, we must apply it on this enormous scale; or else, if it is retained as an ineffectual terror, we should be acting more seriously if we were to expunge it from the penal code, after excluding it from our ordinary practice. And as I shall certainly not have the courage to ask for the restoration of these mediaeval modes of extermination, I am still, for the practical considerations above mentioned, a convinced abolitionist, especially for such countries as Italy, where a more or less artificial and superficial current of public opinion is keenly opposed to capital punishment.

Setting aside the death penalty, as unnecessary in normal times, and inapplicable in the only proportions which would make it efficacious, for the born criminals who commit the most serious crimes, there remains only a choice between these two modes of elimination-transportation for life and indefinite seclusion.

This is the only choice for the positivists; for we cannot attach much importance to the opinion of the German jurists, Holtzendorff, Geyer, and others, who would do away with perpetual imprisonment altogether. Professor Lucchini took up this theory in Italy, saying that the personal freedom of the convict ought to be limited in its exercise, but not suppressed as a right, and that imprisonment for life destroys "the moral and legal personality of the criminal in one of its most important human factors, the sociable instinct." He added that punishment "ought not to become exhausted by excess of duration."

Surely it is not speaking seriously to say that the right of the individual cannot be suppressed if necessity demands it, when we see it done every day in cases of legitimate self-defence; and that punishment is exhausted by excess of duration, when it is precisely the duration of banishment from one's kind which const.i.tutes the only real efficacy of punishment; and to speak of the sociable instinct in connection with the most anti-social criminals.

And it is only by oblivion of the elementary and least contestable data of criminal bio-psychology that the exclusion of all life- punishments can be maintained, on the ground that this perpetuity "is contrary to the reformative principle of punishment, to the principle that punishment ought to aim not only at afflicting the prisoner, but also at arousing in him, if possible, the moral sense, or at strengthening him, and opening up to him a path by which he can hope to be readmitted into society, amended and rehabilitated. Perpetuity of punishment excludes this possibility."

The framers of the Dutch penal code replied to these observations of Professor Pols, first in the name of common sense, that "punishment is not inflicted for the benefit of the prisoner, but for that of society," and secondly, with something of irony, that "even for the sake of the abolition of capital punishment, and to prevent a reaction in favour of this punishment, we must uphold the right of shutting up for ever the few malefactors whose release would be dangerous."

It is entirely futile to consider the amendment of criminals as opposed to imprisonment for life, when it is known that born criminals, authors of the most serious crimes, for whom such punishment is reserved, are precisely those whose amendment is impossible, and that the moral sense attributed to them is only a psychological fallacy of the cla.s.sical psychologist, who attributes to the conscience of the criminal that which he feels in his own honest and normal conscience.

But it is easy enough to see that this opposition to perpetual detention, though it has remained without effect, as being too doctrinaire and sentimental, is only a symptom of the historical tendency of the cla.s.sical schools, entirely in favour of the criminal, and always tending to the relaxation of punishments. The interests of society are too much disregarded when it is sought to pa.s.s from the abolition of capital punishment to that of imprisonment for life. If the tendency is not checked, we may expect to see some cla.s.sical expert demanding the abolition of all punishment for these unfortunate criminals, with their delicate moral sensibilities!

The question, therefore, is between transportation or indefinite seclusion.

Much has been written for and against transportation, and there was a lively discussion of the problem in Italy, some twenty years ago, between M. Beltrani Scalia, a former director-general of prisons, and the advocates of this form of elimination of criminals. Without going into the details of the controversy, it is evident that the experience of countries like England, which for a long time transported its criminals at a cost of hundreds of millions, and then abandoned the practice, is in itself a noteworthy example.

Yet it is only an objection, so far as it goes, against transportation as formerly practised, that is to say, with enormous prisons built in distant lands. M. Beltrani Scalia justly said that we might as well build them at home, for they will cost less and be more serviceable. The example of France in its practical application of this policy is not encouraging.

However, there is in transportation, as in the death penalty, an unquestionable element of reason. For when it is perpetual, with very faint chances of return, it is the best mode of ridding society of its most injurious factors, without our being compelled to keep them in those compulsory human hives which are known as cellular prisons.

But again, there is the question of simple transportation, first put into practice by England, which consists of planting convicts on an island or desert continent, with the opportunity of living by labour, or else of letting them loose in a savage country, where the convicts, who in civilised countries are themselves half savage, would represent a partial civilisation, and, from being highwaymen and murderers, might become military leaders in countries where, at any rate, the revival of their criminal tendencies would meet with an immediate and energetic resistance, in place of the slow machinery of our criminal trials.

For Italy, however, the question presents itself in a special form; for there a sort of internal deportation, in the lands which are not tilled on account of the malaria, would be far more serviceable. If the dispersion of this malaria demands a human hecatomb, it would evidently be better to sacrifice criminals than honest husbandmen. Transportation across the sea was very difficult for Italy a few years ago, especially in view of the lack of colonies; for then there was always the obstacle of which Franklin spoke in reference to transported English convicts, in his well-known retort: "What would you say if we were to transport our rattlesnakes to England?" But since Italy has had her colony of Erythrea the idea of transportation has been taken up again. In May, 1890, I brought forward a resolution in Parliament in favour of an experimental penal colony in our African dependencies. The proposal found many supporters, in spite of the opposition of the keeper of the seals, who forgot that he had written in his report on the draft penal code that prisoners might also be detained in the colonies. Soon afterwards the proposal was renewed by Deputy De Zerbi, and accepted by M. Beltrani Scalia, director-general of prisons.

In a similar manner M. Prins declares himself in favour of transportation for Belgium, since the const.i.tution of the Congo State.

But it is my matured opinion that transportation ought not to be an end in itself. The penal colony for adults ought to be a pioneer of the free agricultural colony. The problem of a penal colony in our African possessions cannot, therefore, be solved in advance of two other questions.

Before all, we must see whether these possessions offer suitable districts for agricultural colonisation. And secondly, we must consider whether convicts would not cost less to transport into districts nearer home which need to be cleared, a plan which would also prevent their going over to the enemy, becoming leaders or guides of the barbarous tribes which are at war with us.

In any case, whether we decide on transportation to the interior or beyond the seas, for born and habitual criminals, there is still the question as to the form of seclusion.

In this connection the idea has been suggested of "establishments for incorrigibles," or hardened criminals, wherein should be confined for life, or (the same thing in this case) for an indefinite period, born criminals who have committed serious crimes, habitual criminals, and confirmed recidivists.

The congenital character and hereditary transmission of criminal tendencies in these individuals fully justify the words of Quetelet, that "moral diseases are like physical diseases: they are contagious, or epidemic, or hereditary. Vice is transmitted in some families in the same way as scrofula or consumption. The greater number of crimes come from a comparatively few families, which need a special supervision, an isolation like that which we impose on sick persons suspected of carrying the germs of infection." So Aristotle speaks of a man who, being accused of beating his father, answered: "My father beat my grandfather, who used to beat his father cruelly; and you see my son-before he is grown up he will fly into pa.s.sions and beat me." And Plutarch added to this: "The sons of vicious and corrupt men reproduce the very nature of their parents."

This is the explanation of Plato's idea, who, "admitting the principle that children ought not to suffer for the crimes of their parents, yet, putting the case of a father, a grandfather, and a great-grandfather who had been condemned to death, proposed that their descendants should be banished, as belonging to an incorrigible family." Carrara called this a mistaken idea, but it seems to us to be substantially just. It may be remembered that when De Metz in 1839 founded his agricultural penal colony at Metray, once celebrated but now in decay (for the whole success of these foundations depends on the exceptional psychological qualities of their governors), out of 4,454 children, 871, or 20 per cent., were the children of convicts. We quite agree with Crofton's proposal to place the children of convicts in industrial schools or houses of correction.

A special establishment for the perpetual or indefinite seclusion of incorrigible criminals has been proposed or approved in Italy by Lombroso, Curcio, Barini, Doria, Tama.s.sia, Garofalo, Carelli; in France by Despine, Labatiste, Tissot, Leveille; in Russia by Minzloff; in England by May; in Germany by Kraepelin and Lilienthal; in Austria by Wahlberg; in Switzerland by Guillaume; in America by Wines and Wayland; in Holland by Van Hamel; in Portugal by Lucas; &c.

But I believe that, in order to establish the fact of incorrigibility, the number of relapses should vary in regard to different criminals and crimes. Thus, for instance, in the case of murders, especially by born criminals, the first crime should lead to an order for imprisonment for life. In the case of less serious crimes, such as rape, theft, wounding, swindling, &c., from two to four relapses should be necessary before the habitual criminal is sentenced to such imprisonment.

These ideas are approximately carried out, especially in the countries which, having made no great advance in the criminal sciences, meet with less of pedantic opposition to practical reforms.

Thus we find that France, after the proposals of Michaux, Pet.i.t, and Migneret, and especially after the advocacy of M. Reinach, followed by several publications of a like kind, agreed to the law of 1885 on the treatment of recidivism.

Messrs. Murray Brown and Baker spoke at the Prison Congress at Stockholm and at the Societe Generale des Prisons at Paris, of the system of c.u.mulative and progressive sentences adopted, though not universally, in England with respect to hardened criminals. The term of imprisonment is increased, almost regularly, on each new relapse. This is the system which had already been suggested by Field and Walton Pearson at the Social Science Congress in October, 1871, and subsequently by c.o.x and Call, who was head of the police at Glasgow, at the Congress of 1874, and which, as Mr. Movatt pointed out, was adopted in the Indian penal code, and had been established in j.a.pan by a decree fixing perpetual imprisonment after the fourth relapse.

The delegate from Canada at the Prison Congress at Stockholm testified that short terms of imprisonment increased the number of offences. "After a first sentence many offenders in this cla.s.s become professional criminals. Professional thieves, who are habitual offenders, ought, with few exceptions, to be sentenced to imprisonment for life, or for a term equivalent to the probable remainder of their life." The draft Russian code, in 1883, provides that, "If it is found that the accused is guilty of several offences, and that he has committed them through habitual criminality, or as a profession, the court, when deciding upon the punishment in relation to the different crimes, may increase it," &c. And the Italian penal code, though with much timidity, has decreed a special increase of punishment for prisoners "who have relapsed several times."

Quite recently, Senator Berenger introduced a measure in France "on the progressive increase of punishment in cases of relapse," which became law on March 26, 1891, under the t.i.tle of "the modification and increase of punishments."

It is therefore very probable that even the cla.s.sical criminalists will end by accepting the indefinite seclusion of hardened criminals, as they have already come to accept criminal lunatic asylums, though both ideas are opposed to the cla.s.sical theories.

This is so true that at the Prison Congress at St. Petersburg in 1889 the question was first propounded "whether it can be admitted that certain criminals should be regarded as incorrigible, and, if so, what means could be employed to protect society against this cla.s.s of convicts." And speaking as a delegate from the Law Society of St. Petersburg, M. Spasovitch acknowledged that "this question bore the stamp of its origin on its face. Of all the questions in the programme, it seemed to be the only one directly inspired by the principles of the new positive school of criminal anthropology, whose theories, propagated beyond the land of their birth in Italy, tended to a radical reform in science as well as in legislation, in the penal law as well as in procedure, in ideas of crime as well as in the modes of repression."

The Congress, in spite of some expressions of reserve, as when Madame Arenal platonically observed that "an uncorrected criminal is not synonymous with an incorrigible criminal," adopted the following resolution:-"Without admitting that from the penal and penitentiary point of view there are any absolutely incorrigible criminals"-which is pure pedantry-"yet since experience shows that there are in fact individuals who resist the combined action of punishment and imprisonment"-a notable admission!-"and who habitually and almost professionally renew their violation of the laws of society, this section of the Congress is unanimously of opinion that it is necessary to adopt special measures against such individuals."

Similarly the International Union of Penal Law, in its session at Berne (August, 1890), expressed the opinions of the majority in the following terms:-"There are malefactors for whom, in view of their physical and moral condition, the constant application of ordinary punishments is inadequate. In this cla.s.s are specially included the hardened recidivists, who ought to be considered as degenerate criminals, or criminals by profession. Malefactors ought to be subjected, according to the degree of their degeneration, or of the danger which they threaten, to special measures, framed with the purpose of preventing them from inflicting harm, and of amending them if possible." And in the session at Christiania (August, 1891), after the remarkable contribution of Van Hamel, the Union, after rejecting the proposition of Felisch, which spoke of "the uncorrected" in place of the "incorrigible," unanimously approved the conclusions of Van Hamel:-"With a view to the more complete study of the character and injurious influence of habitual offenders, notably of such as are incorrigible (a study which is absolutely indispensable for legislation), the Union instructs its officers to urge upon the various Governments the great importance of statistics of recidivism which shall be detailed, precise, uniform, and adapted for comparative study. For incorrigible habitual offenders it is absolutely necessary that the trial on the last charge shall not definitely determine the treatment of the offender, but that the decision shall be carried on to a further inquiry, which shall have regard to the offender personally, to his past, and to his conduct during a fixed period of observation.

It is now necessary to inquire what form the perpetual or indefinite segregation of the criminal should a.s.sume.

Two great innovations in regard to prisons, as M. Tarde observes, have been made or developed within the past century, which are not yet adopted in every country: penal colonies, whereof transportation is only a factor, and the prison cell. The cell has a.s.sumed a leading position since it was brought over from America to Europe, where, however, the cellular prisons of St. Michael at Rome, and of Gand, had preceded it.

The cellular system, a product of the reaction against the enormous physical and moral putrefaction of the inmates of common prisons and labour establishments, may have had, and doubtless still has many advocates, amongst other reasons for the spirit of pietism and religious penitence which always goes with it; but it is open to strong criticism.