1877-81 ... ... .7 ... ... 50 ... ... ... 66

1882-6 ... ... 1 ... ... 49 ... ... ... 65

These figures, if they do not show (as might have been foreseen) so large an increase of severity as in the percentages of acquittals, yet prove that repression has not diminished even in the serious character of the punishments. On the other hand, we can see that, in the a.s.size cases, excluding the first period, before the revision of 1832, whilst capital punishment shows a certain diminution (especially due to the laws of 1832, 1848, &c., which reduced the number of cases involving the death penalty), though continuing at a certain level since 1861, sentences of penal servitude and solitary confinement show a continued increase from the second period, and especially since 1851.

So also at the Tribunals, except for a few oscillations, as in the ninth period, there is a sustained increase of repression.

And the fact that this increased ratio of the more serious punishments actually indicates a greater severity on the part of the judges can only be contested on the ground of a simultaneous increase of the more serious crimes and offences. On the other hand, we note in France a general decrease of crimes against the person (except for a.s.saults on children), and still more of crimes against property.

There is also a striking confirmation in the corresponding acquittals and condemnations of a more serious character. We see, in fact, that the more serious condemnations increase precisely when the acquittals decrease (as in the 4th, 6th, 7th, and 10th periods at the a.s.sizes, and the 2nd, 5th, and 8th periods at the Tribunals); whilst in the years of more frequent acquittals there is also a diminution of more serious punishments, as in the 5th and 8th periods at the a.s.sizes. That is to say, the two sets of statistics actually indicate a greater or less severity on the part of juries and judges.

This firmer repression is demonstrated in spite of the continued increase of attenuating circ.u.mstances, which rose at the a.s.sizes from 50 per cent. in 1833 to 73 per cent. in 1806, and at the Tribunals from 54 per cent. in 1851 to 65 per cent. in 1886. Nevertheless it is a fact that the number of cases tried by default at the a.s.sizes has continuously decreased from a yearly average of 647 in 1826-30 to one of 266 in 1882-6.

For Italy we have the following figures: {column missing head?} PRETORS. TRIBUNALS. a.s.sIZES. --------------------- Condemned to Imprisonment. Condemned Penal Servitude Slighter imprisonment. to death. for life. temporary punishts 1874 21 79 1.2 5.6 65 28 5 22 80 1.3 6.5 63 29 6 23 81 1.3 6.1 66 27 7 24 82 1.5 7.2 66 25 8 25 85 1 7.6 67 25 9 25 - 1.2 6.3 67 25 1880 26 - 1.3 5.5 68 25 1 24 81 1.7 6.1 65 27 2 23 81 1.5 6 66 27 3 23 81 1.7 5.4 64 29 4 23 81 1.3 5.3 64 30 5 23 81 1.6 5.4 63 30 6 21 81 1.6 5.7 62 30 7 21 83 1.1 5.8 63 30 8 21 82 1.2 4.7 65 29

Thus, once more, there has been no relaxation of repression, except in late years for those condemned by the Pretors to penal servitude for life.

The conclusion, therefore, is still the same, namely that judicial repression, in France and Italy, has grown stronger and stronger, whilst criminality has increased more and more.

In this fact, again, which confutes the common opinion that the sovereign remedy of crime is the greater rigour of punishment, we may fairly find a positive proof that the penal, legislative, and administrative systems. .h.i.therto adopted have missed their aim, which can be nothing else than the defence of society against criminals.

Henceforth we must seek, through the study of facts, a better direction for penal legislation as a function of society, so that, by the observation of psychological and sociological laws, it may tend, not to a violent and always tardy reaction against crime already evolved, but to the elimination or diversion of its natural factors.

This fundamental conclusion of criminal statistics is so important that we must confirm it by adding to the statistical data the general laws of biology and sociology. This is the more necessary because my position as first stated has met with some criticism.

In the first place, it is easily seen, when we compare the total result of crime with the varied character of its anthropological, physical, and social factors, that punishment can exert but a slight influence upon it. Punishment, in fact, by its special effect as a legal deterrent, acting as a psychological motive, will clearly be unable to neutralise the constant and hereditary action of climate, customs, increase of population, agricultural production, economic and political crises, which statistics invariably exhibit as the most potent factors of the growth or diminution of criminality.

It is a natural law that forces cannot conflict or neutralise each other unless they are of the same kind. The fall of a body cannot be r.e.t.a.r.ded, changed in direction or accelerated, save by a force h.o.m.ogeneous with that of gravity. So punishment, as a psychological motive, can only oppose the psychological factors of crime, and indeed only the occasional and moderately energetic factors; for it is evident that it cannot, as a preliminary to its application, eliminate the organic hereditary factors which are revealed to us by criminal anthropology.

Punishment, which has professed to be such a simple and powerful remedy against all the factors of crime, is therefore a panacea whose potency is far beneath its reputation.

We must bear in mind a fact which is familiar enough, though it has been too often forgotten by legislators and criminalists. Society is not a h.o.m.ogeneous aggregate, but on the contrary an organism, like every animal organism, composed of tissues of varying structure and sensibility. Every society, in fact, with its progressive and increasingly distinctive needs and occupations, is a product of the union of social cla.s.ses which differ greatly in their organic and psychical characteristics. The physical const.i.tution, the habits, sentiments, ideas, and tendencies of one social stratum are far from being the same as those of other strata. Here again we have, as Spencer would say, the law of evolution through a departure from the h.o.m.ogeneous to the heterogeneous, from the simple to the complex, or, in the words of Ardigo, a natural formation by successive distinctions. Amongst savage tribes this distinction of the social strata does not exist, or it is far less marked than in barbarian societies, and still less than in civilised societies.

Every schoolmaster with a bent for psychological observation separates his pupils into three cla.s.ses. There is the cla.s.s of industrious pupils of good disposition, who work of their own accord, without calling for strict discipline; that of the ignorant and idle (degenerate and of weak nervous force) from whom neither mildness nor severity can obtain anything worth having; and that of the pupils who are neither wholly industrious nor wholly idle, and for whom a discipline based on psychological laws may be genuinely useful.

This is the case with large bodies of soldiers or of prisoners, for all a.s.sociations of men, and for society as a whole. These partial organisms, due to the constant relationships of a life more or less in common, are in this respect reproductions of society as a whole, just as a fragment of crystal reproduces the characteristics of the unbroken crystal.[13]

[13] There is, however, some difference between the manifestation of the activity of a group of men and that of the aggregate society. Between psychology which studies the individual, and sociology which studies the society, I think there is room for a collective psychology, to study more or less defined groups. The phenomena of these groups are a.n.a.logous, but not identical with those of the sociological body properly so called, according as the union is more or less definite. Collective psychology has its field of observation in all unions, however occasional, such as the public street, the markets, workshops, theatres meetings, a.s.semblies, colleges, schools, barracks, prisons, and so forth. Many practical applications of the data of collective psychology might be given. An example will be found in a future chapter, when I come to consider the psychology of the jury.

In the same way, from the standpoint of criminal sociology, we may divide the social strata into three a.n.a.logous categories-the highest, which commits no crimes, organically upright, restrained only by the authority of the moral sense, of religious sentiments and public opinion, together with the hereditary transmission of moral habits. This cla.s.s, for which no penal code would be necessary, is unfortunately very small; and it is far smaller if, in addition to legal and apparent criminality, we also take into account that social and latent criminality through which many men, who are upright so far as the penal code is concerned, are not upright by the standard of morality.

Another cla.s.s, the lowest, is made up of individuals opposed to all sense of uprightness, who, being without education, perpetually dragged back by their material and moral dest.i.tution into the primitive forms of the brute struggle for existence, inherit from their parents and transmit to their children an abnormal organisation, adding degeneration and disease, an atavistic return to savage humanity. This is the nursery of the born criminals, for whom punishments, so far as they are legal deterrents, are useless, because they encounter no moral sense which could distinguish punishment by law from the risk which also attends upon every honest industry.

Lastly we have the other cla.s.s of individuals who are not born to crime, but are not firmly upright, alternating between vice and virtue, with imperfect moral sense, education and training, for whom punishment may be genuinely useful as a psychological motive. It is just this cla.s.s which yields the large contingent of occasional criminals, for whom punishments are efficacious if they are directed in their execution by the axioms of scientific psychology, and especially if they are aided by the social prevention which reduces the number of opportunities of committing crimes and offences.

Once again I must express my agreement with M. Garofalo, who, in dealing with this subject, insists on the necessity of distinguishing between the different cla.s.ses of criminals before deciding as to the efficacy of punishments.

Yet this conclusion as to the very limited efficiency of punishments, which is forced upon us by facts, and which, as Bentham said, is confirmed by the application of each punitive act, precisely because its previous application did not succeed in preventing crime, is directly opposed to general public opinion, and even to the opinion of jurists and legislators.

On the inception or the growth of a criminal manifestation, legislators, jurists, and public think only of the remedies, which are as easy as they are illusory, of the penal code, or of some new Act of repression. Even if this were useful, which is very problematical, it has the inevitable disadvantage of making men ignore other remedies, far more profitable, albeit more difficult, of a preventive and social kind. And this tendency is so common that many of those who have dwelt upon or accepted the positive movement of the new school, not long after they had admitted that I was in the right, declared impulsively that "the constant commission of crime arises from the lack of timely repression," and that "one of the chief causes of the growth of crime in Italy is the mildness of our punishments." Or else they forgot to ask themselves the elementary question of criminal sociology, whether and how far punishments have a genuinely defensive force. This is just what happens with pedagogues who enter upon long discussions on the various methods and means of education, without asking themselves beforehand whether and how far education has the actual power of modifying the temperament and character which heredity stamps upon every individual.

These conclusions take us far beyond the limit of penal severity, and at the same time they suffice to combat the objection commonly raised against those who think, like ourselves, that repressive justice ought to concern itself not with the punishment of past crime, but with the prevention of future crime. For whilst the advocates of severity, and those whom I will call the "laxativists," virtually think (apart from a few platonic statements) only of punishments as remedies of offences, we on the other hand believe that punishments are merely secondary instruments of social self-defence, and remedies ought to be adapted to the actual factors of the offence. And since the social factors are most capable of modification, so we say with Prins that "for social evils we require social cures."

M. Tarde, then, was not quite accurate in his remark that my conviction as to the very slight efficacy of punishments is a mere consequence of my ideas on the anthropological and physical character of crime, and that, "on the contrary, the preponderating importance which he has a.s.signed to the social causes logically debars him from accepting this conclusion." As a matter of fact, punishment regarded as a psychological motive so far as it is a legal deterrent, and as a physical motive so far as it implies the confinement of the person condemned, would more naturally belong, in abstract logic, to the biological and physical theory of crime. Whereas it is precisely because I recognise the influence of social environment, in addition, that experimental logic convinces me that punishment is not an efficacious remedy of crime, unless forces are applied beforehand to neutralise, or at any rate to counteract, the social factors of crime.

And if this is not a new conclusion, as one of our critics observes by way of reproach-as though it were not one of the characteristics of truth to repeat itself persistently, however much it may be forgotten or even opposed-we must nevertheless remark that it is now repeated with a ma.s.s of new observations and definite applications, which give it a force unknown to mere logical deductions.

The cla.s.sical school has concerned itself simply with mitigation of punishment as compared with mediaeval excess; and for this reason, because every age has its own mission, it could not also concern itself with the prevention of crimes, which is far more useful and efficacious. A few isolated thinkers, it is true, wrote a few bold and far-reaching pages on preventive methods in opposition to the numerous volumes on punishment; but their words had no effect upon criminalists and legislators, because science had not yet undertaken the positive and methodical observation of the natural factors of crime.

I will confine myself to a few examples, in order to show that amongst practical men, as amongst public officials and legislators, the illusion that punishments are the true panacea of crime is always predominant.

Practical men declare that "the prohibitive penal law ought to be regarded as the first and most important of preventive laws." The prefets in their circulars, being concerned about the increase of crime, put forward the most vigilant and severe repression as a sovereign remedy. A counsellor of the French Cour de Ca.s.sation writes that "in a worthy system of social police there is no better guarantee for order and safety than intimidation." The Keeper of the Seals, in his report on French penal statistics for 1876, speaking of the continued increase of indecent a.s.saults, comes to the conclusion that "in any case, only firm and energetic repression can avail against a lamentable increase of crimes against morality." And more recently another Keeper of the Seals ended his report on the statistics of 1826 to 1880 by observing that "the growth of crime can only be opposed by an incessantly vigorous repression." M. Tarde agreed with this conclusion, saying that "if crimes are only, as has been said, railway accidents of a society travelling at full speed, it must not be forgotten that, the faster the train, the stronger must be the brake ... and it is certain that such a state of affairs demands an increase or a new departure of repression and punishment."

It may be admitted that our conclusion is not a novelty; but, as Stuart Mill said, there are two ways of effecting useful innovations, to discover what was not known before, or else to repeat with new demonstrations the truths which had been forgotten.

And this illusion as to the influence of punishments is so widespread that it is well to inquire into its historic and psychological arguments; for, as Spencer says, in order to decide as to the value of an idea, it is useful to examine its genealogy.

We may pa.s.s by the foundation of primitive vengeance, which from the age of private combats pa.s.sed into the spirit and form of the earliest penal laws, and still subsists as a more or less unconscious and enfeebled residuum in modern society. We may also pa.s.s by the hereditary effect of the traditions of mediaeval severity, which excite an instinctive sympathy for stern punishment in connection with every crime.

But one of the main reasons of this tendency is an error of psychological perspective, whereby men have forgotten the profound differences of the ideas, habits, and sentiments of the various social strata, concerning which I have spoken above. Through this forgetfulness the honest and instructed cla.s.ses confound their own idea of the penal law, and the impression it makes upon them, with the idea and the impression of the social cla.s.ses from which the majority of criminals are recruited. This has been remarked upon by Beccaria, Carmignani, and Holtzendorff amongst the cla.s.sical criminalists, and by Lombroso and others of the new school who have studied the slang and literature of criminals, which are their psychological mirror. Again, it is forgotten that for the higher cla.s.ses, apart from their physical and moral repugnance against crime, which is the most powerful repelling force, there is the fear of public opinion, almost unknown amongst the cla.s.ses which have stopped short at a lower stage of human evolution.

For the higher cla.s.ses one example may suffice. It is the fact observed upon by Mr. Spencer, that gambling debts and Stock Exchange bargains are scrupulously discharged, though for them there is neither penal obligation nor evidence in writing. And it may be added that imprisonment for debt never promoted the fulfilment of contracts, nor has its abolition discouraged it.

As for the lower cla.s.ses, one visit to a prison suffices. There, if you ask a prisoner why the punishment did not deter him from the crime, you generally get no answer, because he has never thought about it. Or else he replies, as I have often found, that "if you were afraid of hurting yourself when you went to work, you would give up working." These indeed are what one would expect to be the feelings prevailing amongst the lower social strata, to whom honest sentiments and ideas, which for us are traditional and organic, come very late-just as Mr. Stanley observed that the people in Central Africa are only now beginning to employ stone guns, which in past ages were used in Europe.

Another fallacy which helps to strengthen confidence in punishments is that the effect of exceptional and summary laws is treated on the same basis as that of the ordinary codes, slow and uncertain in their procedure, which saps all their force by the chance of immunity, and the interval between the unlawful act and its legal consequence.

Lombroso and Tarde, indeed, have confronted me with historic examples of vigorous and even savage repressions, whereby it was possible to stamp out some epidemic crime. But these examples are not conclusive, for I have shown that, as soon as these exceptional repressions were at an end, as, for instance, after the death of Pope Sixtus V., brigandage and other crimes were persistently renewed. But my main rejoinder is this, that these exceptional repressions depend upon the jus belli; and therefore cannot enter into the ordinary and constant methods of penal administration. This may not have the effect of an extraordinary repression, secured by a somewhat unscrupulous prompt.i.tude, which strikes innocent and guilty alike; and thus it is impossible to treat as equal, or even to compare, the influence of methods which are essentially different.

Another false comparison is drawn between the effective force of various punishments, and their potentiality is confounded, whereas it is necessary to distinguish the punishment of the written code from that of the judge, and still more from that carried into execution. In fact it is only natural that punishment should more or less terrify the criminal who has been judged and is about to be condemned; but this in no way proves its efficacy, which should have been displayed by the menace of the law in guarding the prisoner against the crime. Even with the death penalty, there are many instances of condemned persons who, through congenital insensibility, submit to it cynically. Moreover, for such as have been overwhelmed with terror when the moment of execution arrived, the utmost that this fact can prove is that they are so const.i.tuted as to give themselves up completely to the impression of the moment, without the energy to resist it. In other words, so long as the punishment is distant and uncertain, they were not terrified, but having always yielded to the impression of the moment, they yielded to the criminal impulse.

For other punishments, also, it is known that punitive methods, even when not contrary to the law, as they sometimes are in Italy, are always less stern than simple folk imagine when they read the codes and the sentences. And criminals naturally judge of punishments by their own experience, that is to say, in accordance with their practical application, and not with the more or less candid threats of the lawmaker.

If we add to vindictive feeling, historic traditions, oblivion of bio-psychic differences of the social strata, the confounding of exceptional laws and ordinary punishments, and of the varying effective force of punishment, the att.i.tude of the public mind and the natural tendency of criminalists to think only of their two syllogistic symbols of crime and punishment-if we further add the easy-going idea of the mult.i.tude, that the inscribing of a law in the statute-book is a sufficient remedy for social diseases, we can readily understand how this exaggerated and illusory confidence in punishment is so persistent, and crops up in every theoretical or practical discussion, in spite of the strong refutation which is daily afforded by facts and psychological observation.

All human actions, like the actions of animals, are developed between the two opposite poles of pleasure and pain, by the attraction of the former and the repulsion of the latter. And punishment, which is one of the social forms of pain, is always a direct motive in human conduct, as it is also an indirect guide, by virtue of its being a sanction of justice, unconsciously strengthening respect for the law. But still this psychological truth, whilst it demonstrates the natural character of punishment, and the consequent absurdity of abolishing it as absolutely void of efficacy, does not destroy our conclusion as to the slight efficacy of punishment as a counteraction of crime.

We have only to distinguish between punishment as a natural sanction and punishment as a social sanction in order to see how the really great power of natural punishment almost entirely disappears in social punishment, which in all our systems is but a sorry caricature.

The mute but inexorable reaction of nature against every action which infringes her laws, and the grievous consequences which inevitably follow for the man who has infringed them, const.i.tute a repression of the most efficacious kind, wherein every man, especially in the earlier years of his life, receives daily and never to be forgotten lessons. This is the discipline of natural consequence, which is a genuine educational method, long since pointed out by Rousseau, and developed by Spencer and Bain.

But in this natural and spontaneous form, the punishment derives its whole force from the inevitable character of the consequences. And it is one of the few observations of practical psychology which have been made and repeated by the cla.s.sical students of crime, that in punishment, and especially the punishment of death, the certainty is more effectual than the severity. And I will add that even a small uncertainty takes away from a pain which we fear, much of its repelling force, whereas even a great uncertainty does not destroy the attraction of a pleasure which we are hoping for.

Here, then, we have a primary and potent cause of the slight efficacy of legal punishments, in the picturing of the many chances of escape. First there is the chance of not being detected, which is the most powerful spring of all contemplated crime: then the chance, in case of detection, that the evidence will not be strong enough, that the judges will be merciful, or will be deceived, that judgment may be averted amidst the intricacies of the trial, that clemency may either reverse or mitigate the sentence. These are so many psychological causes which, conflicting with the natural fear of unpleasant consequences, weaken the repellent force of legal punishment, whilst they are unknown to natural punishment.

There is also another psychological condition which, undermining even the force of natural punishment, almost entirely destroys the power of social punishment; and that is improvidence. We see, in fact, that even the most certain natural consequences are defied, and lose most of their power to guard an improvident man from anti-natural and dangerous actions. Now in regard to legal punishment, even apart from pa.s.sionate impulse, it is known that criminals, occasional and other, are specially improvident, in common with savages and children. This weakness is conspicuous enough in the lower and less instructed cla.s.ses, but amongst criminals it is a genuine characteristic of psychological infirmity.

Now, whilst a very slight force is sufficient to produce very great and constant effects, when it acts in harmony with natural tendency and environment, every process, on the other hand, which is opposed to the natural tendencies of man, or which does not follow them closely, encounters a resistance which triumphs in the last resort.