Everyday life gives us many examples. The university student, when he gambles, risks on a single card the last remnant of his allowance, and prepares for himself a thousand privations. Miners and workmen at dangerous trades refuse to take warning by the sight of comrades whom they have seen dying or repeatedly attacked by disease. M. Despine related that, during the cholera of 1866, at Bilbao, there were some who set up an imitation of the disease in order to obtain charitable relief, though in several cases death ensued. M. Fayet, in an essay on the statistics of accused persons in France, extending over twenty years, remarked that specific and proportionately greater criminality was displayed by notaries and bailiffs, who knew better than any one else the punishments fixed by law. And in the statistics of capital punishment at Ferrara, during nine centuries, I discovered the significant fact that there is a succession of notaries executed for forgery, frequently at very short intervals, in the same town. This attests the truth of the observation made by Montesquieu and Beccaria, as against the deterrent power of the death penalty, for men grow accustomed to the sight; and this again is confirmed by the fact mentioned by Mr. Roberts, a gaol chaplain, and M. Berenger, a magistrate, that several condemned men had previously been present at executions, and by another fact mentioned by Despine and Angelucci, that in the same town, and often in the same place, in which executions had been carried out, murders are often committed on the same day.

A man does not change his ident.i.ty; and no penal code, whether mild or severe, can change his natural and invincible tendencies, such as inclination to pleasure and persistent hope of impunity.

Let us also observe that, as Mill said, the permanent efficacy of any measure in the spheres of politics, economy, and administration, is always inversely proportional to its force and suddenness. Now punishment does not stand the test even of this sociological law, for in its essence it is only the primitive reaction of force against force. It is true that, as Beccaria said, the cla.s.sical school has always aimed at rendering social reaction against crime less violent; but that is not enough. Henceforward, if we are to adapt ourselves to psychological and sociological laws, the development of our defensive administration must tend to render this social reaction less direct. If the struggle for existence is always to remain the supreme law of living creatures, yet it is not necessary that it should always be developed in the violent forms of primitive humanity. On the contrary, one of the results of social progress is to make the struggle for existence less violent and less direct.

In the same way, the continuous struggle between society and criminals, instead of being a physical and social force, directly opposed to a physical individual force, should rather become an indirect system of psychical forces. Penal law in society has the same qualities as education in the family and pedagogy in schools. All the three were once dominated by the idea of taming human pa.s.sions by force; the rod was supreme. In course of time it was perceived that this produced unexpected results, such as violence and hypocrisy, and then men thought fit to modify their punishments. But in our own days schoolmasters see the advantage of relying solely on the free play of tendencies and bio- psychological laws. Similarly the defensive function of society, as Romagnosi said, in place of being a physical and repressive system, ought to be a moral and preventive system, based on the natural laws of biology, psychology, and sociology.

Force is always a bad remedy for force. In the Middle Ages, when punishments were brutal, crimes were equally savage; and society, in demoralising rivalry with the atrocity of criminals, laboured in a vicious circle. Now, in the lower social grades, the brutal man, who often resorts to violence, is in his turn frequently the victim of violence; so that, amongst criminals, a scar is somewhat of a professional distinction.

To sum up, our doctrine as to the efficacy of punishments does not consist, as some critics too sparing of their arguments have maintained, in an absolute negation, but rather and especially in objecting to the traditional prejudice that punishments are the best and most effectual remedies of crime.

What we say is this. Punishment by itself, as a means of repression, possesses a negative rather than a positive value; not only because it has not the same influence on all anthropological types of criminals, but also because its use is rather to preclude the serious mischief which would result from impunity than to convert, as some imagine that it can, an anti-social into a social being. But impunity would lead to a demoralisation of the popular conscience in regard to crimes and offences, to an increase of the profound lack of foresight in criminals, and to the removal of the present impediment to fresh crimes during the term of incarceration.

It is the same with education, the modifying power of which is commonly exaggerated. Education, though it has an enduring influence on children, and is therefore more effectual than punishment, is far more serviceable in eliminating anti-social tendencies, whereof we all possess the germs, than in any supposed creation of social tendencies and forces which were not present from birth.

Thus, whilst the consequences of impunity and lack of education are serious and mischievous, still this does not prove conversely that punishment and education have in reality so positive an influence as is commonly attributed to them.

It is precisely on the ground of this negative, yet real efficacy of punishments, especially whilst they are being carried out, that, whilst we appreciate the mitigation of punitive discipline which has been achieved by the cla.s.sical school, we believe, on the other hand, that their abbreviation of the term of punishments is altogether mistaken and dangerous. We admit that punishment ought not to be an arbitrary and inhuman torture, and for this reason we have no sympathy with the system of solitary confinement, now so much in fashion with the cla.s.sical jurists and prison authorities, precisely because it is inhuman, as well as unwise and needlessly expensive.

It is a psychological absurdity and a social danger, which nevertheless underlies the new Italian penal code, that punishment ought to consist more and more in a short isolation of the prisoner. For, setting aside the well-known results of short punishments, such as corruption and recidivism, it is evident that in this way punishment is deprived of its main element of negative efficiency against crime, as well as of its effect in preventing crime during the incarceration of the criminal.

II.

Since punishments, instead of being the simple panacea of crime which popular opinion, encouraged by the opinions of cla.s.sical writers on crime and of legislators, imagine them, are very limited in their deterrent influence, it is natural that the criminal sociologist should look for other means of social defence in the actual study of crimes and of their natural origin.

We are taught by the everyday experience of the family, the school, a.s.sociations of men and women, and the history of social life, that in order to lessen the danger of outbreaks of pa.s.sion it is more useful to take them in their origin, and in flank, than to meet them when they have gathered force.

Bentham relates that in England the delays caused by hard-drinking couriers, who used to be heavily fined without any good result, were obviated by combining pa.s.senger traffic with the postal service. Employers of labour secure industry and the most productive work far more easily by offering a share of the realised profits than by a system of fines. In the German universities, academic jealousies and intolerance have been in great measure overcome by paying the professors in proportion to the number of their pupils, so that the Faculties find it to their interest to engage and encourage the best professors, in order to attract as many students as possible. Thus the activity and zeal of professors, magistrates, and officials would be stimulated if their remuneration depended not only on the automatic test of seniority, but also on the progress displayed by publications, sentences not reversed, settlements not cancelled, and the like. It is better to regulate the disturbing restlessness of children by timely diversions rather than by attempting to repress them in a manner injurious to their physical and moral health. So in lunatic asylums and prisons, work is a better means of order and discipline than chains and castigation. In brief, we obtain more from men by consulting their self-respect and interests than by threats and restraint

If the counteraction of punishment must inevitably be opposed to criminal activity, still it is more conducive to social order to prevent or diminish this activity by means of an indirect and more effective force.

In the economic sphere, it has been observed that when a staple product fails, recourse is had to less esteemed subst.i.tutes, in order to supply the natural wants of mankind. So in the criminal sphere, as we are convinced by experience that punishments are almost devoid of deterrent effect, we must have recourse to the best available subst.i.tutes for the purpose of social defence.

These methods of indirect defence I have called penal subst.i.tutes. But whereas the food subst.i.tutes are as a rule only secondary products, brought into temporary use, penal subst.i.tutes should become the main instruments of the function of social defence, for which punishments will come to be secondary means, albeit permanent. For in this connection we must not forget the law of criminal saturation, which in every social environment makes a minimum of crime inevitable, on account of the natural factors inseparable from individual and social imperfection. Punishments in one form or another will always be, for this minimum, the ultimate though not very profitable remedy against outbreaks of criminal activity.

These penal subst.i.tutes, when they have once been established in the conscience and methods of legislators, through the teaching of criminal sociology, will be the recognised form of treatment for the social factors of crime. And they will also be more possible and practical than that universal social metamorphosis, direct and uncompromising, insisted on by generous but impatient reformers, who scorn these subst.i.tutes as palliatives because humanitarian enthusiasm causes them to forget that social organisms, like animal organisms, can be only partially and gradually transformed.

The idea of these penal subst.i.tutes amounts, in short, to this. The legislator, observing the origins, conditions, and effects of individual and collective activity, comes to recognise their psychological and sociological laws, whereby he will be able to obtain a mastery over many of the factors of crime, and especially over the social factors, and thus secure an indirect but more certain influence over the development of crime. That is to say, in all legislative, political, economic, administrative, and penal arrangements, from the greatest inst.i.tutions to the smallest details, the social organism will be so adjusted that human activity, instead of being continually and unprofitably menaced with repression, will be insensibly directed into non-criminal channels, leaving free scope for energy and the satisfaction of individual needs, under conditions least exposed to violent disturbance or occasions of law-breaking.

It is just this fundamental idea of penal subst.i.tutes which shows how necessary it is that the sociologist and legislator should have such a preparation in biology and psychology as Mr. Spencer justly insisted on in his "Introduction to Social Science." And it is the fundamental idea rather than the subst.i.tutes themselves that we should bear in mind if we would realise their theoretical and practical value as part of a system of criminal sociology.

As for the efficacy of any particular penal subst.i.tute, I readily admit, in some sense at least, the partial criticisms which have been pa.s.sed upon them. Apart from such as simply say that they do not believe in the use of alternatives to punishment, and such as confine themselves to the futile question whether this theory belongs to criminal science or to police administration, a majority of criminal sociologists have now definitely accepted the doctrine of penal subst.i.tutes. This theory is accepted, not as an absolute panacea of crime, but, as I have always stated it, in the sense of a combination of measures a.n.a.logous to penal repression; in place of trusting solely to repression for the defence of society against crime.

Let us take note of a few examples.

I. In the Economic Sphere.-Free Trade (apart from the temporary necessity of protecting a particular manufacturing or agricultural industry), by preventing famines and exceptional high prices of and taxes on food, eliminates many crimes and offences, especially against property.-Unrestricted emigration is a safety- valve, especially for a country in which this phenomenon, a.s.suming large proportions, carries off many persons who are easily driven to crime by wretchedness, or by their unbalanced energy. Thus the number of recidivists has diminished in Ireland, not by virtue of her prison systems, but by emigration, which reached forty-six per cent. of released prisoners. In Italy, also, there has been a decrease of crime since 1880, owing to other causes, such as mild winters and plentiful harvests, but also through a vast increase of emigration.-Smuggling, which for centuries resisted extremely harsh punishments, such as amputation of the hand, and even death, and which still resists prison and the fire-arms of the revenue officers, is suppressed by the lowering of the import tariff, as M. Villerme has shown in the case of France. So that everyday facts justify the system of Adam Smith, who said that the law which punished smuggling, after creating the temptation, and which increased the punishment when it increased the temptation, was opposed to all justice; whilst Bentham, on the contrary, departing from his maxim that the punishment ought to be dreaded more strongly than the offence attracted, called for the stern repression of smuggling.-The system of taxation which touches wealth and visible resources instead of the prime necessaries of life, and which is proportional to the taxpayer's income, diminishes the systematic frauds which no punishment availed to stop, and it will also abolish the arbitrary and exaggerated fiscal traditions which have been the cause of rebellions and outrages. In fact, Fregier describes the criminal industries which are called into existence by octrois, and which will disappear with the abolition of these absurd and unjust duties. And whilst M. Allard demonstrated that a decrease of taxes on necessaries would have beneficial effects, not only in economic affairs but also in respect of commercial frauds, the Report on French Criminal Statistics for 1872 calmly continued to call for more severe repression of such frauds. To this M. Mercier replied that if the cause-that is to say, disproportionate taxes-were not removed, it would be impossible to prevent the effects.-Immunity from taxation for the minimum necessary to existence, by preventing distraint, and the consequent diminution of small properties, which means the increase of the very poor, will obviate many crimes, as we see from the agrarian conditions in Ireland. Thus there is a demand in Italy for the inalienability of small properties, as in America under the Homestead Exemption Law.-Public works, during famine and hard winters, check the increase of crimes against property, the person, and public order. For instance, during the scarcity of 1853-5 in France, there was no such enormous increase of theft as during the famine of 1847, simply because the Government set up vast relief works in the winter months.

The taxes and other indirect restrictions on the production and sale of alcohol are far more efficacious than our more or less enormous gaols. The question of p.r.o.nounced and chronic drunkenness has increased in gravity, owing to its effect upon the physical and moral health of the people.

In France the average consumption of wine, estimated at 62 litres (13.64 gallons) per head in 1829, exceeded 100 litres in 1869; and in Paris the average of 120 litres in 1819-30, reached 227 litres in 1881. The average yearly consumption of alcohol in France rose from .93 in 1829 to 3.24 in 1872, and 3.9 in 1885, the rates in a few towns being still higher. The total manufacture of alcohol in France (95 per cent. of which is consumed in the form of drink) rose from 479,680 hectolitres in 1843 to 1,309,565 in 1879, and 2,004,000 in 1887. Simultaneously, we have seen that there was an increase of crimes and offences in France, suicides in particular having increased from 1,542 in 1829 to 8,202 in 1887.

Moreover I have shown by a special table (Archivio di Psichiatria) that in France, despite a certain inevitable variation from year to year, there is a manifest correspondence of increase and decrease between the number of homicides, a.s.saults, and malicious wounding, and the more or less abundant vintage, especially in the years of extraordinary variations, whether of failure of the vintage (1853-5, 1859, 1867, 1873, 1878-80), attended by a remarkable diminution of crime (a.s.saults and wounding), or of abundant vintages (1850, 1856-8, 1862-3, 1865, 1868, 1874-5) attended by an increase of crime.

I was also the first to show that in the vintage months there is an increase of occasional crimes and offences against the person, owing to that connection between drink and crime which had already been remarked upon by M. Pierquin amongst others, and ill.u.s.trated by the newspaper reporters on the days which follow Sundays and holidays.

But apart from their natural variation, the connection between drink and crime is definitely established. Every day we have the confirmation of Morel's statement, that "alcoholism has produced a demoralised and brutalised cla.s.s of wretched beings, characterised by an early depravation of instincts, and by indulgence in the most immoral and dangerous actions." It is useless to quote again in this place the data of psycho- pathology and legal medicine, or those of prison statistics relating to imprisoned drunkards, or to tavern brawls as the proved causes of crime.

Nevertheless it is a fact that the relation of cause and effect between drink and crime has recently been denied, with the aid of arguments based upon statistics. M. Tammeo opened the discussion by observing that the countries of Europe and the provinces of Italy distinguished by the largest consumption of alcohol, show lower ratios under the worst crimes of violence. He gave to his remark a relative and limited value, for he only denied that the abuse of liquor was the most active cause of crime. After him M. Fournier de Flaix, maintaining the same proposition with the same statistical arguments, and admitting that "alcohol is a special scourge for the individual who indulges in it," yet concluded that "alcoholism is not a scourge which menaces the European race." And he repeated that the nations which consumed the greatest quant.i.ty of alcohol show a slighter frequency of crime, especially against the person. Lastly M. Colajanni enlarged upon the same proposition, using the statistical data so fully set out by M. k.u.mmer, and drew a still more positive conclusion, that "there is a lack of constancy, regularity, and universality in the relations, coincidence, and sequence, as between alcoholism and crime and suicide; so that it is impossible to establish any statistical relation of cause and effect between these phenomena."

Pa.s.sing over the grave errors of fact in M. Colajanni's brochure, I will only observe that this proposition is a pure misapprehension of statistical logic.

If we once admit (and unfortunately it cannot be denied) the bad influence of alcohol on bodily and mental health, in the form of spirits as well as of wine-as to which it is not correct to say that the southern departments are not consumers of alcohol-it cannot be maintained that alcohol, which is physically and morally injurious to individuals, is not hurtful to nations, which are but aggregates of individuals.

There is an easy answer to the statistical arguments. (1) A symmetrical and continuous agreement of figures is never found in any collection of statistics, for in all that concerns a society the intervention of individual, physical, and social causes is inevitable. (2) A negative conclusion from these partial and natural disagreements (for it is especially true in biology and sociology that every rule has its exceptions, due to intervening causes) would only be justified if it had been maintained that alcoholism is the sole and exclusive cause of crime. But as this has never been a.s.serted by anybody, all the statistical arguments of Fournier and Colajanni are based on a misapprehension. And unfortunately they do not destroy the link of causality between drink and crime. This connection is occasional, in a.s.saults, wounding, and homicide in acute alcoholism. It is habitual, in the case of chronic alcoholism, as in crimes against property, the person, morality, and public officers. And this in spite of the relatively low figures, though lower than the facts warrant, contained in the general statements, apart from special and scientific inquiries into alcoholism as a direct and manifest cause of crime and suicide.

I wrote as early as 1881 that alcoholism, prior to its becoming a cause, is the effect of wretched social conditions in the poorer cla.s.ses; and that to the one-sided simplicity of economic causes it is necessary to add certain bio-psychical conditions and conditions of physical environment, which go far to determine the geographical distribution of spirit-alcoholism (chronic and more serious, in northern countries and provinces) and wine-alcoholism (acute and less deep-seated, in the countries and provinces of the south).

It was therefore natural that indirect measures against alcoholism should have been resorted to long ago, such as the raising of the tax on alcoholic drinks, and the lowering of that on wholesome beverages, such as coffee, tea, and beer; strict limitation of the number of licenses; increased responsibility of license-holders before the law, as in America; the expulsion of tipsy members from workmen's societies; the provision of cheap and wholesome amus.e.m.e.nts; the testing of wines and spirits for adulteration; better organised and combined temperance societies; the circulation of tracts on the injurious effects of alcohol; the abolition of certain festivals which tended rather to demoralisation than to health; discouragement of the custom of paying wages on Sat.u.r.day; the establishment of voluntary temperance homes, as in America, England, and Switzerland.

North America, England, Sweden and Norway, France, Belgium, Holland, and Switzerland have applied remedies against drunkenness (to the length of a State monopoly of drink in Switzerland); but with too much zeal for public revenue, and, under the pretext of public health, almost exclusively framed with a view to duties on manufacture, distribution, and consumption. Yet these duties are quite inadequate by themselves, and may even tend to the injury of the physical and moral health of the nation, the increase of price, leading to frauds and adulteration.

Penal laws against drunkenness, naturally resorted to in all countries, are far from being effectual. There is so far no system of direct and indirect measures against alcoholism, duly co-ordinated, beyond taxation and punishment. And we perceive, as for instance in France, in spite of the repressive law introduced by my distinguished friend Senator Roussel (January, 1873), and in spite of the extremely high duties, which were doubled in 1872 and 1880, that alcoholism persists with a terrible and fatal increase. So it is, more or less, in every country still, in spite of duties and punishments.

The irregularity of wages, and the deceitful vigour imparted by the first recourse to alcohol, the poverty and excessive toil of the working cla.s.ses, insufficiency of food, inherited habits, and the lack of efficacious preventive measures, are influences which prevent the working man from resisting this scourge; and no fiscal or repressive law, acting solely by direct compulsion, will ever be able to paralyse these natural tendencies, which can only be weakened by indirect measures. On the other hand, when we remember that habitual intoxication, so common in mediaeval days amongst the n.o.bles and townsfolk, has grown less and less frequent in those cla.s.ses (aided by the introduction and rapid diffusion of coffee since the time of Louis XIV.), it is possible to hope that the improvement of economic, intellectual, and moral conditions amongst the populace will gradually succeed in modifying this terrible plague of drink, which cannot be cured all at once.

To continue our ill.u.s.trations of penal subst.i.tutes, we see that the subst.i.tution of metallic money for a paper medium decreases the number of forgers, who on the contrary had defied penal servitude for life. False money is more easily detected than a spurious note.[14]-Money dealers and dealers in precious stones have done more than any punishment to check the crime of usury, as was shown in the case of Spain, after her American conquests; whereas mediaeval punishments never prevented the recrudescence of usury in one form or another. Popular and Agricultural Credit Banks, which are practically within the reach of all, are more efficacious against usury in our own days than the special repressive laws enacted once more in Germany and Austria, under the influence of the old illusion.-With the diminution of interest on the public funds the stream of capital has been diverted into commerce, manufactures, and agriculture, thus warding off stagnation, with the bankruptcies, forgeries, frauds, &c., which result therefrom.-The adjustment of salaries to the needs of public officials, and to general economic conditions, stems the tide of corruption and embezzlement, which were partly due to their concealed poverty.-Limited hours of duty for the responsible services on which the safety of the public depends, as for instance in railway stations, are far more serviceable in preventing accidents than the useless punishment of those who are guilty of manslaughter.-High-roads, railways, and tramways disperse predatory bands in rural districts, just as wide streets and large and airy dwellings, with public lighting and the destruction of slums, prevent robbery with violence, concealment of stolen goods, and indecent a.s.saults.-Inspection of workshops and shorter hours for children's labour, with their superintendence of married women, may be a check on indecent a.s.saults, which penal servitude does not prevent.-Cheap workmen's dwellings, and general sanitary measures for houses both in urban and rural districts, care being taken not to crowd them with poor families, tend to physical health, as well as to prevent many forms of immorality.-Co-operative and mutual societies, provident societies and insurance against old age, funds for sick and infirm workmen, employers' liability for accidents during work, from machinery or otherwise; popular savings' banks, charity organisation societies and the like, obviate a large number of offences against property and the person much better than a penal code.-I have maintained in the Italian Parliament that the reform of religious charities, which in Italy represent funds to the amount of two milliards, might lead to the prevention of crime.-Measures for the discouragement of mendacity and vagrancy, above all agricultural colonies, as in Holland, Belgium, Germany, and Austria, would be the best penal subst.i.tute for the very frequent offences committed by vagabonds. Thus it may be concluded that a prudent social legislation, not stopping short at mere superficial and perfunctory reforms, might const.i.tute a genuine code of penal subst.i.tutes, which could be set against the ma.s.s of criminal impulses engendered by the wretched conditions of the most numerous cla.s.ses of society.

[14] Coiners and forgers of notes const.i.tute .09 per cent. of the total of condemned persons in France, and .04 per cent. in Belgium; but they reach .4 per cent. in Italy, on account of the greater circulation of banknotes.

II. In the Political Sphere.-For the prevention of political crime, such as a.s.sa.s.sination, rebellion, conspiracies, civil war, arbitrary repression and prevention by the police are powerless; there is no other means than harmony between the Government and the national aspirations. Italy has been a conspicuous example of this, for under the rule of the foreigner, neither the scaffold nor the galleys could hinder political outrages, which have disappeared with national independence. So with Ireland and Russia. Germany, which believed that it could stamp out socialism by exceptional penal laws, discovered its mistake.-For so-called press offences (which are either ordinary offences committed by the aid of the press, or are not offences at all), nothing but freedom of opinion can render attacks and provocations of a political type less frequent.-Respect for the law spreads through a nation by the example on the part of the governing cla.s.ses and authorities of constant respect for the rights of individuals and a.s.sociations, far better than by policemen and prisons.-Electoral reform adapted to the condition of a country is the only remedy against electoral offences.-Similarly, in addition to the economic reforms already indicated, political and parliamentary reforms are much more serviceable than the penal code in preventing many offences of a social and political type, provided that a more real harmony has been established between a country and its lawful representation, and that the latter is freed from the occasions and the forms which lead to its abuse, by removing technical questions from injurious political influences, and giving the people a more direct authority over public affairs, including the referendum.-Finally, that great ma.s.s of crimes, isolated or epidemic, evolved by unsatisfied needs and the neglect of separate divisions of a country, which differ in climate, race, traditions, language, customs, and interests, would be largely eliminated if we were to dispense with the vague folly of political symmetry and bureaucratic centralisation, and in their place to adapt the laws to the special features of the respective localities. National unity in no way depends upon legislative and administrative uniformity, which is merely its unhealthy exaggeration. It is indeed inevitable that laws, which in our day merely represent a mode of contact between the most varied moral, social and economic conditions of different localities, should always be inadequate to social needs-too restricted and slow in action for one part of the country, too sweeping and premature for another part, just as the average convict's garb is too long for those who are short, and too short for those who are tall. Administrative federation with political unity (e pluribus unum) would furnish us with an aggregate of penal subst.i.tutes, restoring to each part of the social organism that freedom of movement and development which is a universal law of biology and sociology-for an organism is but a federation too lightly appreciated by the advocates of an artificial uniformity, such as ends by conflicting with unity itself.

III. In the Scientific Sphere.-The development of science, which creates fresh instruments of crime, such as fire-arms, the press, photography, lithography, new poisons, dynamite, electricity, hypnotism, and so forth, sooner or later provides the antidote also, which is more efficacious than penal repression.- The press, anthropometric photography of prisoners, telegraphy, railways, are powerful auxiliaries against crime.-Dissection and the progress of toxicology have decreased the number of poisoning cases; and experience has already proved that "Marsh's preparation" has rendered poisoning by a.r.s.enic, once so common, comparatively rare.-A similar process has recently been suggested as a means of detection in cases of forgery, for when doc.u.ments are exposed to iodine vapour, effaced or altered writing is restored.-Women doctors will diminish the opportunities of immorality.-The free expression of opinion will do more to prevent its possible dangers than trials of a more or less scandalous kind.-Piracy, which was not extirpated by punishments which are now obsolete, is disappearing under the effects of steam navigation.-The spread of Malthusian ideas prevents abortion and infanticides.[15]-Systematic bookkeeping, by its clearness and simplicity, obviates many frauds and embezzlements, which were encouraged by the old complicated methods.-Cheques, by avoiding the necessity of frequent conveyance of money, do more to prevent theft than punishments can do.-The credentials given by some banks to their clerks, whose duty it is to witness the signature of the actual debtor, prevent the falsification of bills.-Certain bankers have adopted the practice of taking an instantaneous photograph of every one presenting cheques for large amounts.-Safes, bolts, and alarm- bells, are a great security against thieves. -As a preventive of murder in railway carriages, it has been found that alarm signals and methods of securing the carriage-doors from the inside, are more effectual than penal codes.

[15] No doubt there may be a difference of opinion on this subject in France, where public opinion is too much exercised over the problem of depopulation. I agree with M. Varigny ("La Theorie du Nombre," Revue des Deux Mondes, Dec. 15, 1890) that the population of a country is not the sole, or even the princ.i.p.al consideration. Apart from physical characteristics (race), intellectual and moral qualities, and the productiveness of the soil on which M. Varigny dwells, we must take into account, as it seems to me, the unquestionable law by virtue of which the struggle for existence, amongst individuals as amongst nations, becomes gradually less vehement and direct. War, which is an everyday matter with savages, grows constantly more rare and difficult. The varying social and international conscience of civilised humanity is not to be neglected, and it must be reckoned with as a positive factor in considering the destiny of nations. Men continue to speak of the perils of war (in which numbers stand for a great deal, but are not the exclusive element) as though the social conscience of our own day were still the same as that of the Middle Ages. In several respects, on the other hand, the thinner population of France is one cause of its wealth, and therefore of its power. Germany has a more numerous, but also a poorer population. And I do not believe that the actual power of nations, on which their future depends, consists in loading a people with arms after enfeebling it by military expenditure, which from the year 1880 has indicated a distinct epidemic mania on the continent of Europe.

IV. In the Legislative and Administrative Sphere.-Wise testamentary legislation prevents murders through the impatient greed of next-of-kin, as in France during a former age, with what was known as "succession powder."-A law to facilitate the securing of paternal a.s.sent for the marriage of children (as suggested by Herschel in his "Theory of Probabilities") in countries which require the a.s.sent of both parents, and for affiliation and breach of promise of marriage, with provision for children born out of wedlock, are excellent as against concubinage, infanticide, abortion, exposure of infants, indecent a.s.saults, and murders by women abandoned after seduction. On this head Bentham said that concubinage regulated by civil laws would be less mischievous than that which the law does not recognise but cannot prevent.-Cheap and easy law is a preventive of crimes and offences against public order, the person and property, as I have already said.-The ancient Italian inst.i.tution of Advocate of the Poor, if subst.i.tuted for the present illusory a.s.sistance by the courts, would prevent many acts of revenge. So also would a strict and speedy indemnity for the victims of other men's crimes, intrusted to a public minister when the injured person is not able to resort to the law; for as I have maintained, with the approval of sundry criminal sociologists, civil responsibility for crime ought to be as much a social obligation as penal responsibility, and not a mere private concern.-Simplification of the law would prevent a large number of frauds, contraventions, &c., for, apart from the metaphysical and ironical a.s.sertion that ignorance of the law excuses no man, it is certain that our forest of codes, laws, decrees, regulations and so forth, leads to endless misapprehensions and mistakes, and therefore to contraventions and offences.-Commercial laws on the civil responsibility of directors, on bankruptcy proceedings and the registration of shareholders, on bankrupts' discharges, on industrial and other exchanges, would do more than penal servitude to prevent fraudulent bankruptcy.-Courts of honour, recognised and regulated by law, would obviate duels without having recourse to more or less serious punishments.-A well organised system of conveyancing checks forgery and fraud, just as registration offices have almost abolished the palming and repudiation of children, which were so common in mediaeval times. Deputy Michelin, in order to discourage bigamy, proposed in 1886 to inst.i.tute in the registers of births for every commune a special column for the civil standing of each individual, so that any one who contemplated marriage would have to produce a certificate from this register, and thus would be unable to conceal a previous marriage which had not been dissolved by death or divorce.-The form of indictment by word of mouth in penal procedure has prevented many calumnies and false charges.-Foundling and orphan homes, or, still better, some less old-fashioned subst.i.tute, such as lying-in hospitals and home attendance for young mothers, might do much to prevent infanticide and abortion, which are not checked by the severest punishment.-Prisoners' aid societies, especially for the young, might be useful as penal subst.i.tutes, although much less so than is generally alleged, with plenty of eloquence and little practical work. There is always this strong objection to them, that we ought to succour workmen who continue honest in spite of their wretchedness before those who have been in prison; and again, in place of bestowing patronage on released prisoners without distinction, many of whom are incorrigible, we ought to select the occasional criminals and criminals of pa.s.sion, who alone are capable of amendment; and a.s.sisting them we should avoid anything like police formalities. As a matter of fact it appears that, even in England, where these societies are most active, their intervention, like all direct charity, is too far below the needs of those for whom provision is necessary.

V. In the Sphere of Education.-It has been proved that mere book education, whilst it is useful in rendering certain gross frauds more difficult, in extending a knowledge of the laws, and above all in diminishing improvidence, so characteristic of the occasional criminal, is far from being the panacea of crime which people imagined when they found in the criminal statistics a large proportion of illiterate prisoners. It must also be said that schools which are not closely inspected are frequently hotbeds of immorality. It is necessary, therefore, to rely on the influence of a wider education, limited though this may be in its turn. I do not mean a mechanical instruction in moral maxims, appealing to the intelligence without reaching the feelings, but rather of the examples afforded by every kind of social inst.i.tution, by the government and the press, by the school of the stage and of public entertainments.-It would be well, however, to abolish certain vulgar and sensual entertainments, and to subst.i.tute for them wholesome amus.e.m.e.nts and exercises, public baths, properly superintended, and so built as to render private meetings impossible, cheap theatres, and so forth. Thus the prohibition of cruel spectacles, and the suppression of gambling houses, are excellent penal subst.i.tutes.-The experimental method in the teaching of children, which applies the laws of physio- psychology, according to the physical and moral type of each pupil, and by giving him less of archaeology, and more knowledge serviceable in actual life, by the mental discipline of the natural sciences, which alone can develop in him a sense of the actual, such as our cla.s.sical schools only enfeeble, would adapt men better for the struggle of existence, whilst diminishing the number of those left without occupation, who are the candidates of crime.-Many of the causes of crime would be nipped in the bud by checking degeneration through physical education of the young, as well as by preventing demoralisation by means of the education of abandoned children, at such inst.i.tutions as the workhouse, ragged and industrial schools, so well developed in England-or, still better, by the boarding out of children, so as to avoid over- crowding.-One cla.s.s of inducements to crime would be eliminated by restrictions imposed on scandalous publications which concern themselves exclusively with crime, having no other object than to trade upon the most brutal pa.s.sions, and which are allowed to exist under an abstract conception of liberty, save that the responsible conductors are punished when the evil has been done.-Similarly there ought to be some restriction upon the right of admission to police-courts and a.s.sizes, where our women hustle each other as the Roman women of the decline scrambled to be present at the imperial circus-shows, and where our young men and our hardened criminals receive lessons in the art of committing crimes with greater smartness and precaution.

The instances which I have given, and which might be multiplied into a preventive code as long as the penal code, prove to demonstration how large a part is played by social factors in the genesis of crime, and especially of occasional crime. But they prove still more clearly that the legislator, by modifying these causes, can influence the development of crime within limits imposed by the compet.i.tion of other anthropological and physical factors. Quetelet was right, therefore, when he said in this connection, "Since the crimes committed every year seem to be the necessity of our social organisation, and their number cannot be diminished if the causes to which they are due cannot be modified in a preventive sense, it behoves legislators to recognise these causes, and to eliminate them as far as possible. They must frame the budget of crime as they frame that of the national revenue and expenditure."

It must nevertheless be borne in mind that all this will have to be done apart from the penal code; for it is true, however strange, that history, statistics, and direct observation of criminal phenomena prove that penal laws are the least effectual in preventing crime, whilst the strongest influence is exercised by laws of the economic, political, and administrative order.

In conclusion, the legislator should be convinced by the teaching of scientific observation that social reforms are much more serviceable than the penal code in preventing an inundation of crime. The legislator, on whom it devolves to preserve the health of the social organism, ought to imitate the physician, who preserves the health of the individual by the aid of experimental science, resorts as little as possible, and only in extreme cases, to the more forcible methods of surgery, has a limited confidence in the problematic efficiency of medicines, and relies rather on the trustworthy processes of hygienic science. Only then will he be able to avoid the dangerous fallacy, ever popular and full of life, which Signor Vacca, Keeper of the Seals, expressed in these words: "The less we have recourse to preventive measures, the more severe ought our repression to be." Which is like saying that when a convalescent has no soup to pick up his strength, we ought to administer a drastic drug.

It is precisely on this point that the practical, rather than the merely theoretical, differences between the positive and the cla.s.sical schools of penal law become evident. Whilst we believe that social reforms and other measures suggested by a study of the natural factors of crime are most effective in preventing crime, legislators, employing the a priori method of the cla.s.sical school, have for many years past been discussing proposed penal codes, whilst they permit criminality to make steady progress. It is another case of Dum Romae consulitur, Saguntum expugnatur.

And when the legislators find their Byzantine discussions on the "juridical ent.i.ties" of crime and punishment broken in upon by a recrudescence of crime, or by a serious manifestation of some phenomenon of social pathology, then all they can do in their perplexity and astonishment is to pa.s.s some new repressive law, which for a moment stills the outcry of public opinion, and remits the matter once more from the acute to the chronic phase.