The positive theory of penal subst.i.tutes, apart from any particular example, aims precisely at furnishing a mental discipline for legislators, and bringing home to them the duty of constant reinforcements of social prevention, no matter how difficult it may be, before the evil comes to a head, and forces them too late to a course of repression which is as easy as it is fallacious. No doubt it is vexatious and difficult, even in private life, to be perpetually living up to rules of health; and it is easier, if more dangerous, to forget them, and to fly, when the mischief declares itself, to drugs which are too frequently deceptive; but it is just the want of forethought, both public and private, which it is so important to overcome. And as hygienic science was not possible as a theory or as a practice until after the experimental observations and physio-pathology on the causes of disease, especially of epidemic and infectious diseases, together with the discoveries of M. Pasteur, who created bacteriology; so social hygiene as against crime was only possible as a theory, and will not be so as a practice, till the diffusion of the facts of biology and criminal sociology relating to the natural causes of crime, especially of occasional crime.

The great thing is to be convinced that, for social defence against crime, as for the moral elevation of the ma.s.ses of men, the least measure of progress with reforms which prevent crime is a hundred times more useful and profitable than the publication of an entire penal code.

When a minister introduces a law, for instance, on railways, customs duties, wages, taxation, companies, civil or commercial inst.i.tutions, there are few who think of the effect which these laws will have on the criminality of the nation, for it is imagined that sufficient has been done in this respect by means of reforms in the penal code. In the social organism, on the other hand, as in individuals, there is an inevitable solidarity, though frequently concealed, between the most distant and different parts.

It is just from these laws of social physiology and pathology that we derive the notion of penal subst.i.tutes, which at the same time we must not dissociate from the law of criminal saturation. For if it is true that by modifying the social factors we can produce an effect on the development of crime, and especially of occasional crime, it is also true, unfortunately, that in every social environment there is always a minimum of inevitable criminality, due to the influence of the other factors, biological and physical. Otherwise we might easily fall into the opposite and equally fallacious illusion of thinking that we could absolutely suppress all crimes and offences. For it is easy to reach on one side the empiric idea of penal terrorism, and on the other side the hasty and one-sided conclusion that to abolish some particular inst.i.tution would get rid of its abuses. The fact is that we must consider before all things whether it is not a less evil to put up with inst.i.tutions, however inconvenient, and to reform them, than to forfeit all the advantages which they afford. And it must above all be borne in mind that as society cannot exist without law, so law cannot exist without offences against the law. The struggle for existence may be fought by honest or economic activity, or by dishonest and criminal activity. The whole problem is to reduce to a minimum the more or less criminal rufflings and shocks, yet without disturbing "social order," amidst the indifference or servility of a spiritless people, or resorting to policemen and prisons on every slight occasion.

These general observations on penal subst.i.tutes in connection with the law of criminal saturation are a sufficient answer to the two chief objections raised even by such as agree with me in theory.

It has been urged, in effect, that some of the penal subst.i.tutes which I have enumerated have already been applied, without preventing crime; and again, that there were some inst.i.tutions which it would be absurd to abolish because the removal of a prohibition would also remove the contravention.

The aim of penal subst.i.tutes is not to render all crimes and offences impossible, but only to reduce them to the least possible number in any particular physical and social environment. There are crimes of piracy to this day, but the use of steam in navigation has, none the less, been more effectual than all the penal codes. Murders still occur, though very rarely, on the railways; but it is none the less true that the subst.i.tution of the railways and tramways for the old diligences and stage coaches has decimated highway robberies, with or without murder. Divorce does not eliminate wife-murder as a consequence of adultery, but it diminishes its frequency. Similarly, after the protection which is afforded to abandoned children, we shall not be able to close the tribunals through the absence of crimes and offences, but it is certain that the supply of these will be notably diminished.

As for the second objection, I was careful to say, in regard to existing inst.i.tutions, that we must naturally consider whether the evil arising from violating them or that which would be due to their suppression is the greater. But my main contention is that by reforming these inst.i.tutions we can do more to prevent crime than by leaving them as they happen to be, or at most granting them the fallacious protection of one or two articles in the penal code.

I will myself add a criticism of the theory of penal subst.i.tutes, and it is that they are difficult of application. We have only to think of the immense force of inertia in the habits, traditions and interests which have to be overcome before we can secure the application, not of all, but of any one of the penal subst.i.tutes which I have enumerated. And some of these are not simple, or based on a single principle, but comprise an a.s.semblage of co-ordinated reforms, like the prevention of drunkenness, the protection of abandoned children, the accessibility of justice, and so forth.

But if legislators must take into account the actual conditions of the people, and adapt themselves to conditions of time and place, it is the business of science to indicate the goal, however distant and difficult to reach. The first condition of attaining legislative and social reforms is that they should impress themselves beforehand on the public conscience; and this is not possible if science, in spite of transitory difficulties, does not resolutely open up the road which has to be travelled, without any compromise with eclecticism, which means for science what hybridism means for organic life.

Two other objections may be made on the ground of principle to what has been said. The first is that this system of penal subst.i.tutes is only the familiar process of prevention of crime. The second is that the criminal expert need not concern himself with it, since prevention is only a question of good government, which has nothing to do with the study of crimes and punishments.

My answer to the second objection is that the importance of taking measures to prevent crime has certainly been dwelt upon, especially from the time of Montesquieu and Beccaria, but it has been only by way of platonic and isolated declaration, with no such systematic development as might have given them practical application, based on experimental observations. Moreover, this prevention has always been held as subsidiary to repression, whereas we have arrived at the positive conclusion that prevention, instead of being a mere secondary aid, should henceforth become the primary defensive function of society, since repression has but an infinitesimal influence upon criminality.

Furthermore, it is important to observe the profound distinction between ordinary prevention and penal subst.i.tutes; or in other words, between prevention by police and prevention by society. The former merely seeks to prevent crime when its germ is already developed and active, and it nearly always employs methods of direct coercion, which, being themselves repressive in their character, are often inefficacious, even if they do not provoke additional offences. Social prevention, on the other hand, begins with the original sources of crime, attacking its biological, physical, and social factors, by methods which are wholly indirect, and which rest upon the free play of psychological and sociological laws.

Science, as well as the making of laws, has. .h.i.therto been too much influenced by a preference for repression, or at least for administrative police prevention. "There have been authoritative works and learned folios," says Ellero, "which dealt not only with punishment, but also with torture; there has been none dealing with the provision of means for providing an alternative to punishment."

After the general observations of Montesquieu, Filangieri, Beccaria, and more recently Tissot, on the influence of religion, climate, soil, and the form of government, upon the penal system rather than the prevention of crime, the authors who studied prevention with wider and more systematic views (excluding the criminal sociologists who have more or less taken the positive point of view), are Bentham, Romagnosi, Barbacovi, Carmignani, Ellero, Lombroso, and a few Englishmen, who, without making much of the theory, have made many practical suggestions of preventive reform. But even these writers either confine themselves to general synthetic considerations, like Romagnosi and Carmignani, or else, entering the domain of facts, and even accepting the idea of social prevention, have made too little of those physio- psychological laws as the natural factors of crime, which alone can furnish a method of regulating human activity. And, when all is said and done, they have clung to punishment as the chief method of prevention.

Hence their teaching and their propositions have had no weight with legislators, for these latter had not been convinced, as only the criminal sociologist could convince them, that punishments are far from having the deterrent force commonly attributed to them, and that crime is not the outcome of free will, but rather a natural phenomenon which can only disappear or diminish when its natural factors are eliminated.

The legislators for their part have not only neglected the definite teaching of these authors with more than ordinary insight, but they have also enacted what are really penal subst.i.tutes in a clumsy and unscientific manner.

We have thus studied the data of criminal statistics in their theoretical and practical relations with criminal sociology, and come to the conclusion that, since crime is a natural phenomenon, determined by factors of three kinds, it answers on that account to a law of criminal saturation, whereby the physical and social environment, aided by individual tendencies, hereditary or acquired, and by occasional impulses, necessarily determine the extent of crime in every age and country, both in quant.i.ty and quality. That is to say, the criminality of a nation is influenced in the natural sphere by the bio-psychical conditions of individuals and their physical environment, and, in the social sphere, by economic, political, administrative and civil conditions of laws, far more than by the penal code.

Nevertheless the execution of punishment, though it is the less important part of the function of social defence, which should be carried out in harmony with the other functions of society, is always the last and inevitable auxiliary.

And this entirely agrees with the universal law of evolution, in virtue of which, amidst the variation of animal and social organisms, antecedent forms are not wholly eliminated, but continue as the basis of the forms which succeed them. So that if the future evolution of the social administration of defence against crime is to consist in the development of the primitive forms of direct physical coercion into the higher forms of indirect psychical discipline of human activity, this will not imply that the primitive forms must entirely disappear, especially for the gravest crimes, which, in the biological and psychological conditions of those who commit them, take us back to the primitive epochs and forms of individual and social violence.

I end with a modification of an old comparison which has been much abused. Crime has been compared to an impetuous torrent which ought to be enclosed between the d.y.k.es of punishment, lest civilised society should be submerged. I do not deny that punishments are the d.y.k.es of crime, but I a.s.sert that they are d.y.k.es of no great strength or utility. All nations know by sad and chronic experience that their d.y.k.es cannot save them from inundations; and so our statistics teach us that punishments have but an infinitesimal power against the force of criminality, when its germs are fully developed.

But as we can best protect ourselves against inundations by obeying the laws of hydrostatics and hydrodynamics, by timbering the banks near the source of the stream, and by due rectilineation or excavation along its course and near its mouth, so, in order to defend ourselves against crimes, it is best to observe the laws of psychology and sociology, and to avail ourselves of social subst.i.tutes, which are far more efficacious than whole a.r.s.enals of repressive measures.

CHAPTER III.

PRACTICAL REFORMS.

The data of criminal anthropology and statistics, and the positive theory of responsibility which flows from them, although they have been systematised only by the positive school, are nevertheless too constantly in evidence not to have made their way into courts and parliaments.

I have already spoken of penal jurisprudence in its relations with criminal sociology, and may now cite a few examples of the more or less direct and avowed influence of the new data on penal legislation.

The legislators of to-day, vaguely impressed by statistical and biological, ethnographical and anthropological data, and still imbued with the old prejudice of social and political artificiality, were at first hurried into a regular mania for legislation, under which every newly observed social phenomenon seemed to demand a special law, regulation, or article in the penal code. Then, as Spencer has said in one of his most brilliant essays, the citizen finds himself in an inextricable network of laws, decrees, regulations and codes, which surround him, support him, fetter and bind him, even before his birth and after his death. For those whom M. Bordier calls the gardeners and trussmakers of society, forgetting the natural character of social phenomena, picture society as so much paste, to which the cook may give any form he pleases, whether pie-crust, dumpling, or tart.

Hence we see on all sides, side by side with dogma in the cla.s.sical sciences of law, economy, and politics, empiricism in the laws themselves. And that is why the practical defects and constant impotence of repression in penal justice are the most eloquent arguments of the experimental school, which extends and strengthens its own theoretical inductions by the practical reforms which it suggests.

A first example of the influence more directly exercised by the new ideas in penal legislation is furnished by the proposal already realised in the penal laws of Holland, Italy, &c., of two parallel systems of punishment by detention-one for the graver and more dangerous crimes, and the other, "simple detention," or custodia honesta ("as a first-cla.s.s misdemeanant"), for contraventions, involuntary offences, and crimes not inspired by the baser pa.s.sions.

Similarly, the enumeration contained in certain codes, as in Spain, and in the old Mancini draft of a penal code in Italy, of the main aggravating and extenuating circ.u.mstances common to all crimes and offences, such as the antecedents of the accused, venial or inexcusable pa.s.sion, repentance and confession of a crime, extent of injury or the like, is only an elementary and empiric form of the biological and psychological cla.s.sification of criminals.

Thus also the foundation of asylums for the detention of lunatic criminals, in spite of their being acquitted of moral responsibility; the more and more vigorous, but often too empirical measures against the progressive increase of recidivism; the proposed repressive measures as alternatives to short terms of detention; the reaction against the exaggerations of cellular confinement, which I regard as one of the aberrations of the nineteenth century, are all manifest proofs of the more or less avowed and logical influence of the data of criminal biology and sociology on contemporary penal legislation.

These practical reforms, which, when grafted on the old trunk of the cla.s.sical theories of crime and punishment, are mere arbitrary and misplaced expedients, really represent, when they are logically co-ordinated and completed, the new system of social defence against crime, which is based on the scientific data and inductions of the positive school, and which it is therefore necessary for us to trace out from its foundations.

I.

In the first place, whilst the positive theories largely reduce the practical importance of the penal code, yet they do more to increase the importance of the rules of penal procedure, which are intended to give practical and daily effect to penal measures, for the defence of society against criminals. For, as I maintained in the Italian Parliament, if the penal code is a code for evil- doers, that of penal procedure is a code for honest people, who are placed on their trial but not yet found guilty.

This is all the more true because, if it is possible to have penal codes whose machinery of psychological coercion is planted on a platonic platform of penitentiary systems written out fair in their symmetrical clauses, but still non-existent, as is the case in Italy, this is not possible in regard to penal procedure. The regulations of the code of "instruction" must of necessity be carried out by a judicial routine. The penal code may remain a dead letter, as, for instance, when it says that punishment by detention is to be inflicted in prisons constructed with cells; for, happily, the cells necessary in Italy for fifty or sixty thousand prisoners (or in France for thirty or forty thousand) are too expensive to admit of the observance of these articles of the penal code-which nevertheless have cost so many academic discussions as to the best penitentiary system: "Auburn," "Philadelphian," "Irish," or "progressive." In the organisation of justice, on the other hand, every legal regulation has its immediate application, and therefore reforms of procedure produce immediate and visible results.

It may be added that, if the slight deterrent influence which it is possible for punishment to exercise depends, with its adaptation to various types of criminals, on the cert.i.tude and prompt.i.tude of its application, the others depend precisely and solely on the organisation of the police, and of penal procedure.

Pa.s.sing over special and technical reforms which even the cla.s.sical experts in crime demand in the systems of procedure, and often rather on behalf of the criminals than on behalf of society, we may connect the positive innovations in judicial procedure with these two general principles:-(1) the equal recognition of the rights and guarantees of the prisoner to be tried and of the society which tries him; and (2) the legal sentence, whereof the object is not to define the indeterminable moral culpability of the prisoner, nor the impersonal applicability of an article in the penal code to the crime under consideration; but the application of the law which is most appropriate to the perpetrator of the crime, according to his more or less anti- social characteristics, both physiological and psychological.

From Beccaria onward, penal law developed by reaction against the excessive and arbitrary severity of the Middle Ages-a reaction which led to a progressive decrease of punishments. Similarly official penal procedure in the nineteenth century has been, and continues to be, a reaction against the mediaeval abuses of the inquisitorial system, in the sense of a progressive increase of individual guarantees against the domination of society.

As we considered it necessary in the interests of social self- defence, in the case of criminal law, to combat the individualist excesses of the cla.s.sical school, so in regard to penal procedure, whilst admitting the irrevocable guarantees of individual liberty, secured under the old system, we think it necessary to restore the equilibrium between individual and social rights, which has been disturbed by the many exaggerations of the cla.s.sical theories, as we will now proceed to show by a few examples.

The presumption of innocence, and therewith the more general rule, "in dubio pro reo," is certainly based on an actual truth, and is doubtless obligatory during the progress of the trial. Undetected criminals are fortunately a very small minority as compared with honest people; and we must consequently regard every man who is placed on his trial as innocent until the contrary has been proved.

But when proof to the contrary is evident, as, for instance, in the case of a flagrant crime, or of confession confirmed by other elements in the trial, it seems fit that the presumption should cease in view of absolute fact; and especially when we have to do with habitual criminals.

Even the criminals of this cla.s.s whom I have questioned recognise a presumption of the opposite kind. "They have convicted me," said an habitual thief, "because they knew I might have done it, without any proof; and they were in the right. You will never be convicted, because you never stole; and if we happen to be innocent once in a way, that must be set against the other times when we are not discovered." And the ironical smile of several of these prisoners, condemned on circ.u.mstantial evidence, reminded me of a provision which was once proposed in the Italian penal code, under which a person surprised in the attempt to commit a crime, if it was not known what precise form his crime would have taken, was to be found guilty of a less serious offence. This might be good for an occasional criminal, or a criminal of pa.s.sion, but would be absurd and dangerous for habitual criminals and old offenders.

The exaggerations of the presumption "in dubio pro reo" are due to a sort of mummification and degeneracy of the legal maxims, whereby propositions based upon observation and generalisation from existing facts continue in force and are mechanically applied after the facts have changed or ceased to exist.

What reason can there be for extending provisional freedom, pending an appeal, to one who has already been found guilty and liable to punishment for a crime or offence, under sentence of a court of first instance? To presume the innocence of every one during the first trial is reasonable; but to persist in a presumption which has been destroyed by facts, after a first condemnation, would be incomprehensible if it were not a manifestly exaggerated outcome of cla.s.sical and individualist theories, which can only see a "victim of authority" in every accused person, and in every condemned person also.

Another point is that of acquittal in case of an equality of votes, especially where born and habitual criminals are concerned. I think it would be much more reasonable to restore the verdict of "not proven," which the Romans admitted under the form of "non liquet," as an alternative to "absolvo" and "condemno," and which may be delivered by juries in Scotland. Every one who has been put on his trial is ent.i.tled to have his innocence declared, if it has been actually proved. But if the proofs remain incomplete, his only right is not to be condemned, since his culpability has not been proved. But it is not the duty of society to declare him absolutely innocent, when suspicious circ.u.mstances remain. In this case the only logical and just verdict is one of "not proven." Such a verdict would obliterate the shadow of doubt which rests on persons who have been acquitted, by reason of the identical verdicts in cases of proved innocence and inadequacy of proof, and on the other hand it would avoid the tendency to compromise, under which judges and juries, in place of acquitting when the proof is insufficient, sometimes prefer to convict, but make the punishment lighter.

Another case of exaggeration in the presumption of innocence is afforded by the regulations as to contradictory or irregular verdicts, which may be corrected only when there has been a conviction; whilst if the error has led to the acquittal of an accused person, it cannot be put right. The influence of the individualist and cla.s.sical school is here manifest, for, as M. Majno says, "the justice of sentences rests as much on just condemnations as upon just acquittals." If the individual has a right to claim that he shall not be condemned through the mistake or ignorance of his judges, society also has the right to demand that those whose acquittal is equally the result of mistake or ignorance shall not be allowed to go free.

On the same ground of equilibrium between the rights of the individual and the rights of society, which the positive school aims at restoring, something must be said as to the regulation by which, if the appeal is brought by a condemned person, the punishment cannot be increased. One cla.s.sical expert in an official position would not even give the right to appeal at all.

Now if appeal is allowed for the purpose of correcting possible mistakes on the part of the original judges, why must we allow this correction in mitigation, and not in increase of punishment? And to this practical a.s.surance of the condemned person that he has nothing to fear from a second trial, which seems to have been given to him for the sole purpose of encouraging him to abuse his power, since appeals are too often a mere dilatory pretext, there is a pendant in the right of the public prosecutor to demand a re- hearing, but only "in the interest of the law, and without prejudice to the person acquitted."

A last instance of the same kind of protective regulation for the protection of evil-doers is to be found in the new trials which are permitted only in cases where there has been a condemnation, and that on arbitrary and superficial grounds. Most of the cla.s.sical commentators on procedure do not dream of the possibility of revision in the case of acquittals, and yet, as Majno justly says, "even if he has profited by false witness, forged doc.u.ments, intimidation or corruption of a judge, or any other offence, the acquitted person calmly enjoys his boast, and can even plume himself on his own share in the business without fear of being put on his trial again." The Austrian and German codes of procedure admit revision in cases of acquittal; and the positive rule in this connection ought to be that a case should be re-heard when the sentence of condemnation or acquittal is evidently erroneous.

From the same principle of equality between the guarantees of the individual criminal and of honest society we infer the necessity of greater strictness in the indemnification of the victims of crime. For the platonic damages now added to all sorts of sentences, but nearly always ineffectual, we believe that a strict obligation ought to be subst.i.tuted, the operation of which should be superintended by the State, in the same way as the other consequence of the crime, which is called the punishment. I will return to this when I trace the outline of the positive system of social defence against criminals.