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Criminal Sociology
by Enrico Ferri
3arch! 1004 5Etext 67118
Project Gutenberg's Etext of Criminal Sociology by Enrico Ferri
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P-EF@CE
The follo"ing #ages are a translation of that #ortion of Professor Ferri's
$olume on Criminal Sociology "hich is imme%iately concerne% "ith the
#ractical #roblems of criminality The -e#ort of the Go$ernment committee
a##ointe% to inIuire into the treatment of habitual %run&ar%s! the -e#ort of
the committee of inIuiry into the best means of i%entifying habitual criminals!
the re$ision of the English criminal returns! the -e#orts of committees
a##ointe% to inIuire into the a%ministration of #risons an% the best metho%s
of %ealing "ith habitual oRen%ers! $agrants! beggars! inebriate an% ju$enile
%elinIuents! are all e$i%ence of the fact that the formi%able #roblem of crime
is again #ressing its "ay to the front an% %eman%ing re-examination at the
han%s of the #resent generation The real %imensions of the Iuestion! as
Professor Ferri #oints out! are #artially hi%%en by the su#er'cial
inter#retations "hich are so often #lace% u#on the returns relating to crime 2f
the #o#ulation of #risons or #enitentiaries shoul% ha##en to be %eclining! this
is imme%iately inter#rete% to mean that crime is on the %ecrease @n% yet a
cursory examination of the facts is su>cient to sho" that a %ecrease in the
#rison #o#ulation is merely the result of shorter sentences an% the
substitution of 'nes or other similar #enalties for im#risonment 2f the list of
oRences for trial before a ju%ge an% jury shoul% exhibit any sym#toms of
%iminution! this circumstance is imme%iately sei9e% u#on as a #roof that the
criminal #o#ulation is %eclining! an% yet the %iminution may merely arise
from the fact that large numbers of cases "hich use% to be trie% before a jury
are no" %ealt "ith summarily by a magistrate 2n other "or%s! "hat "e
"itness is a change of ju%icial #roce%ure! but not necessarily a %ecrease of
crime @gain! "hen it is #ointe% out that the number of #ersons for trial for
in%ictable oRences in Englan% an% )ales amounte% to JG!077 in 1E17-E an%
J4!71D in 1EE0-0G! "e are at a loss to see "hat colour these 'gures gi$e to
the statement that there has been a real an% substantial %ecrease of crime
The increase! it is true! may not be &ee#ing #ace "ith the gro"th of the
general #o#ulation! but! as an eminent ju%ge recently state% from the bench!
this is to be accounte% for by the fact that the #ublic is e$ery year becoming
more lenient an% more un"illing to #rosecute .ut an increase of leniency!
ho"e$er excellent in itself! is not to be confoun%e% "ith a %ecrease of crime
2n the stu%y of social #henomena our #aramount %uty is to loo& at facts an%
not a##earances
.ut "hether criminality is &ee#ing #ace "ith the gro"th of #o#ulation or not
it is a #roblem of great magnitu%e all the same! an% it "ill not be sol$e%! as
Professor Ferri #oints out! by a mere resort to #unishments of greater rigour
an% se$erity :n this matter he is at one "ith the Scotch %e#artmental
committee a##ointe% to inIuire into the best means of %ealing "ith habitual
oRen%ers! $agrants! an% ju$eniles @s far as the su##ression of $agrancy is
concerne% the members of the committee are unanimously of o#inion that
ZZthe se$erest enactments of the general la" are futile! an% that the best
results ha$e been obtaine% by the mil%er #ro$isions of more recent statutes''
They also s#ea& of the ZZutter ina%eIuacy of the #resent system in all the
$ariety of %etail "hich it oRers to %eter the habitual oRen%er from a course of
life "hich %e$ol$es the cost of his maintenance on the #rison an% the
#oorhouse "hen he is not #reying %irectly on the #ublic'' The committee
state that they ha$e ha% testimony from a large number of "itnesses
su##orting the $ie" that ZZlong sentences of im#risonment eRect no goo%
result!'' an% they arri$e at the conclusion that to %ouble the #resent
sentences "oul% not %iminish the number of habitual oRen%ers 2n this
conclusion they are at one "ith the $ie"s of the -oyal Commission on Penal
Ser$itu%e! "hich acIuiesce% in the objection to the #enal ser$itu%e system
on the groun% that it ZZnot only fails to reform oRen%ers! but in the case of
the less har%ene% criminals an% es#ecially 'rst oRen%ers #ro%uces a
%eteriorating eRect'' @ similar o#inion "as recently ex#resse% by the Prisons
Committee #resi%e% o$er by 3r /erbert Gla%stone @s soon as #unishment
reaches a #oint at "hich it ma&es men "orse than they "ere before! it
becomes useless as an instrument of reformation or social %efence
The #ro#er metho% of arri$ing at a more or less satisfactory solution of the
criminal #roblem is to inIuire into the causes "hich are #ro%ucing the
criminal #o#ulation! an% to institute reme%ies base% u#on the results of such
an inIuiry Professor Ferri's $olume has this object in $ie" The 'rst chanter!
on the %ata of Criminal @nthro#ology! is an inIuiry into the in%i$i%ual
con%itions "hich ten% to #ro%uce criminal habits of min% an% action The
secon% cha#ter! on the %ata of criminal statistics! is an examination of the
a%$erse social con%itions "hich ten% to %ri$e certain sections of the
#o#ulation into crime 2t is Professor Ferri's contention that the $olume of
crime "ill not be materially %iminishe% by co%es of criminal la" ho"e$er
s&ilfully they may be constructe%! but by an amelioration of the a%$erse
in%i$i%ual an% social con%itions of the community as a "hole Crime is a
#ro%uct of these a%$erse con%itions! an% the only eRecti$e "ay of gra##ling
"ith it is to %o a"ay as far as #ossible "ith the causes from "hich it s#rings
@lthough criminal co%es can %o com#arati$ely little to"ar%s the re%uction of
crime! they are absolutely essential for the #rotection of society @ccor%ingly!
the last cha#ter! on Practical -eforms! is inten%e% to sho" ho" criminal la"
an% #rison a%ministration may be ma%e more eRecti$e for #ur#oses of social
%efence
) * 3
C:;TE;TS
C/@PTE- 2
T/E *@T@ :F C-232;@= @;T/-:P:=:GP :rigin of Criminal Sociology! [:rigin
of Criminal @nthro#ology! [3etho%s of Criminal @nthro#ology! [-elation
bet"een Criminal @nthro#ology an% Criminal Sociology! [Criminal
@nthro#ology stu%ies the organic an% mental constitution of the criminal! [
The criminal s&ull an% brain! [Criminal #hysiognomy! [Physical insensibility
among criminals! [Criminal here%ity! [Criminal #sychology! [3oral
insensibility among criminals! [The criminal min% 22 The %ata of criminal
anthro#ology only a##lies to the habitual or congenital criminal! [The
occasional an% habitual criminal! [Com#arison bet"een the criminal an%
non-criminal s&ull! [@nomalies in the criminal s&ull! [The habitual criminal!
[The crimes of habitual criminals! [The criminal ty#e con'ne% to habitual
criminals! [The #ro#ortion of habitual criminals in the criminal #o#ulation! [
Forms of habitual criminality! [Forms of occasional criminality! [
Classi'cation of criminals! [Criminal lunatics! [3oral insanity! [.orn
criminals! [Criminals by acIuire% habit! [Criminal #recocity! [;ature of
ju$enile crime! [-ela#se% criminals! [Precocity an% rela#se among
criminals! [Criminals of #assion! [:ccasional criminals! [*iRerences
bet"een the occasional an% the born criminal! [Criminal ty#es sha%e into
each other! [;umbers of se$eral classes of criminals! [ ,alue of a #ro#er
classi'cation of criminals! [@ fourfol% classi'cation
C/@PTE- 22
T/E *@T@ :F C-232;@= ST@T2ST2CS
,alue of criminal statistics! [The three factors of crime! [ @nthro#ological
factors! [Physical factors! [Social factors! [Crime a #ro%uct of com#lex
con%itions! [Social con%itions %o not ex#lain crime! [ERects of tem#erature
on crime! [ Crime a result of biological as "ell as social con%itions! [The
measures to be ta&en against crime are of t"o &in%s! #re$enti$e an%
eliminati$e! [The \uctuations of crime chie\y #ro%uce% by social causes! [
Stea%iness of the gra$er forms of crime! [ ERect of ju%icial #roce%ure on
criminal statistics! [Crimes against the #erson are high "hen crimes against
#ro#erty are lo"! [2s crime increasing or %ecreasingO [:>cial o#timism in
criminal statistics! [*ensity of #o#ulation an% crime! [ Con%itions on "hich
the \uctuations of crime %e#en%! [ Tuetelet's la" of the mechanical
regularity of crime! [The eRect of en$ironment on crime! [The eRect of
#unishment on crime! [The $alue of #unishment is o$er-estimate%! [
Statistical #roofs of this! [.iological an% sociological #roofs! [Crime is
%iminishe% by #re$ention not by re#ression! [=egislators an% a%ministrators
rely too much on re#ression! [The basis of the belief in #unishment![;atural
an% legal #unishment! [The %isci#line of conseIuences! [The uncertainty of
legal #unishment! [)ant of foresight among criminals! [Penal co%es cannot
alter in$incible ten%encies! [Force is no reme%y! [;egati$e $alue of
#unishment 22 Substitutes for #unishment! [The elimination of the causes of
crime! [Economic reme%ies for crime! [*rin& an% crime! [*run&enness an
eRect of ba% social con%itions! [Taxation of %rin&! [=a"s against %rin&! [
Social amelioration a substitute for #enal la"! [ Social legislation an% crime!
[Political amelioration as a #re$enti$e of crime! [*ecentralisation a
#re$enti$e! [ =egal an% a%ministrati$e #re$enti$es! [Prisoners' @i%
Societies! [E%ucation an% crime! [Po#ular entertainments an% crime! [
Physical e%ucation as a reme%y for crime! [To %iminish crime its causes must
be eliminate%! [The aim an% sco#e of #enal substitutes! [*i>culty of
a##lying #enal substitutes! [*iRerence bet"een social an% #olice
#re$ention! [=imite% e>cacy of #unishment! [Summary of conclusions
C/@PTE- 222
P-@CT2C@= -EF:-3S
Criminal sociology an% #enal legislation! [Classi'cation of #unishments! [
The reform of criminal #roce%ure! [The t"o #rinci#les of ju%icial #roce%ure!
[Princi#les %etermining the nature of the sentence! [Present #rinci#les of
#enal #roce%ure a reaction against me%iae$al abuses! [The ZZ#resum#tion
of innocence!'' [The $er%ict of ZZ;ot Pro$en!'' [The right of a##eal! [@
secon% trial! [-e#aration to the $ictims of crime! [;ee% for a 3inistry of
Qustice! [ Public an% #ri$ate #rosecutors! [The gro"ing ten%ency to %ro#
criminal charges! [The ten%ency to minimise the o>cial returns of crime! [
-oman #enal la"! [-e$ision of ju%icial errors! [-e#aration to #ersons
"rongly con$icte%! [ Pro$ision of fun%s for this #ur#ose! [-e#aration to
#ersons "rongly #rosecute%! [3any criminal oRences shoul% be trie% as ci$il
oRences! [The object of a criminal trial 22 The crime an% the criminal! [The
stages of a criminal trial! [ The e$i%ence! [@nthro#ological e$i%ence! [The
utilisation of hy#notism! [Psychological an% #sycho-#athological e$i%ence! [
The cre%ibility of "itnesses! [Ex#ert e$i%ence! [@n a%$ocate of the #oor! [
The ju%ge an% his Iuali'cations! [ Ci$il an% criminal ju%ges shoul% be
%istinct functionaries! [The stu%ent of la" shoul% stu%y criminals! [Training
of #olice an% #rison o>cers! [The status of the criminal ju%ge! [The
authority of the ju%ge 222 The jury! [:rigin of the jury! [@%$antages of the
jury! [*efects of the jury! [The jury as a #rotection to liberty! [The jury an%
criminal la"! [Quries untraine% an% irres#onsible! [ ;umbers fatal to
"is%om! [*efects of ju%ges! [*iRerence bet"een the English an%
Continental jury! [Social e$olution an% the jury! [The jury com#are% to the
electorate! [/o" to utilise the jury 2, Existing #rison systems a failure! [
*efects of existing #enal systems! [The abuse of short sentences! [The
gro"th of reci%i$ism! [Garofalo's scheme of #unishments! [,on =is9t's
scheme of #unishments! [The basis of a rational system of #unishment! [
The in%eterminate sentence! [Flogging! [The in%e'nite sentence for
habitual oRen%ers! [,an /amel's #ro#osals as to sentences! [The liberation
of #risoners on an in%e'nite sentence! [The su#er$ision of #unishment! [
Con%itional release! [Goo% con%uct test in #risons! [Police su#er$ision! [
2n%emni'cation of the $ictims :f crime! [The %uty of the State to"ar%s the
$ictims of crime! [*efensi$e measures must be a%a#te% to the %iRerent
classes of criminals! [<niformity of #unishment! [The #rison staR! [
Classi'cation of #risoners! [Prison labour , @sylums for criminal lunatics! [
The treatment of insane criminals! [Crime an% ma%ness! [Classi'cation of
asylums for criminal lunatics! [The treatment of born criminals! [The %eath
#enalty! [Extension of the %eath #enalty! [2na%eIuacy of the %eath #enalty!
[2m#risonment for life! [Trans#ortation! [ =abour settlements! [
Establishments for habitual criminals! [Criminal here%ity! [2ncorrigible
oRen%ers! [ Cumulati$e sentences! [<ncorrecte% or incorrigible criminals!
[Cellular #risons! [Solitary con'nement! [The #rogressi$e system of
im#risonment! [The e$ils of cellular im#risonment! [The cell %oes not
secure se#aration! [ Costliness of the cellular system! [=abour un%er the
cellular system! [:#en-air "or& the best for #risoners! [The treatment of
habitual criminals! [The treatment of occasional criminals! [The treatment
of young oRen%ers! [ Futility of short sentences! [Substitutes for short
sentences! [Com#ulsory "or& "ithout im#risonment! [Con%itional
sentences! [Con%itional sentences in .elgium! [Con%itional sentences in
the <nite% States! [:bjections to con%itional sentences! [)hen the
con%itional sentence is legitimate! [ The treatment of criminals of #assion! [
Conclusion
2;T-:*<CT2:;
T/E P:S2T2,E SC/::= :F C-232;@= =@)
*uring the #ast t"el$e or fourteen years 2taly has #oure% forth a stream of
ne" i%eas on the subject of crime an% criminalsS an% only the short-
sighte%ness of her enemies or the $anity of her \atterers can fail to recognise
in this stream something more than the outcome of in%i$i%ual labours
@ ne" %e#arture in science is a sim#le #henomenon of nature! %etermine% in
its origin an% #rogress! li&e all such #henomena! by con%itions of time an%
#lace @ttention must be %ra"n to these con%itions at the outset! for it is only
by accurately %e'ning them that the scienti'c conscience of the stu%ent of
sociology is %e$elo#e% an% con'rme%
The ex#erimental #hiloso#hy of the latter half of our century! combine% "ith
human biology an% #sychology! an% "ith the natural stu%y of human society!
ha% alrea%y #ro%uce% an intellectual atmos#here %eci%e%ly fa$ourable to a
#ractical inIuiry into the criminal manifestations of in%i$i%ual an% social life
To these general con%itions must be a%%e% the #lain an% e$ery%ay contrast
bet"een the meta#hysical #erfection of criminal la" an% the #rogressi$e
increase of crime! as "ell as the contrast bet"een legal theories of crime an%
the stu%y of the mental characteristics of a large number of criminals
From this #oint on"ar%s! nothing coul% be more natural than the rise of a ne"
school! "hose object "as to ma&e an ex#erimental stu%y of social #athology
in res#ect of its criminal sym#toms! in or%er to bring theories of crime an%
#unishment into harmony "ith e$ery%ay facts This is the #ositi$e school of
criminal la"! "hereof the fun%amental #ur#ose is to stu%y the natural
genesis of criminality in the criminal! an% in the #hysical an% social con%itions
of his life! so as to a##ly the most eRectual reme%ies to the $arious causes of
crime
Thus "e are not concerne% merely "ith the construction of a theory of
anthro#ology or #sychology! or a system of criminal statistics! nor merely
"ith the setting of abstract legal theories against other theories "hich are
still more abstract :ur tas& is to sho" that the basis of e$ery theory
concerning the self-%efence of the community against e$il-%oers must be the
obser$ation of the in%i$i%ual an% of society in their criminal acti$ity 2n one
"or%! our tas& is to construct a criminal sociology
For! as it seems to me! all that general sociology can %o is to furnish the more
or%inary an% uni$ersal inferences concerning the life of communitiesS an%
u#on this can$as the se$eral sciences of sociology are %elineate% by the
s#ecialise% obser$ation of each %istinct or%er of social facts 2n this manner
"e may construct a #olitical sociology! an economic sociology! a legal
sociology! by stu%ying the s#ecial la"s of normal or social acti$ity amongst
human beings! after #re$iously stu%ying the more general la"s of in%i$i%ual
an% collecti$e existence @n% thus "e may construct a criminal sociology! by
stu%ying! "ith such an aim an% by such a metho%! the abnormal an% anti-
social actions of human beings[or! in other "or%s! by stu%ying crime an%
criminals
;either the -omans! great ex#onents as they "ere of the ci$il la"! nor the
#ractical s#irits of the 3i%%le @ges! ha% been able to lay %o"n a #hiloso#hic
system of criminal la" 2t "as .eccaria! in\uence% far more by sentiment
than by scienti'c #recision! "ho ga$e a great im#etus to the %octrine of
crimes an% #unishments by summarising the i%eas an% sentiments of his age
518 :ut of the $arious germs containe% in his generous initiati$e there has
been %e$elo#e%! to his "ell-%eser$e% cre%it! the classical school of criminal
la"
518 *esjar%ins! in the 2ntro%uction to his ZZCahiers %es Etats Generaux en
11E0 et la =egislation Criminelle!'' Paris! 1EEG! gi$es a goo% %escri#tion of the
state of #ublic o#inion in that age /e s#ea&s also of the charges "hich "ere
brought against the a%$ocates of the ne" %octrines concerning crime! that
they u#set the moral an% social or%er of things ;o"a%ays! charges against
the ex#erimental school are cite% from these same a%$ocatesS for the
re$olutionary of yester%ay is $ery often the conser$ati$e of to-%ay
This school ha%! an% still has! a #ractical #ur#ose! namely! to %iminish all
#unishments! an% to abolish a certain number! by a magnanimous reaction of
humanity against the arbitrary harshness of me%iae$al times 2t ha% also! an%
still has! a metho% of its o"n! namely! to stu%y crime from its 'rst #rinci#les!
as an abstract entity %e#en%ent u#on la"
/ere an% there since the time of .eccaria another stream of theory has ma%e
itself manifest Thus there is the correctional school! "hich -oe%er brought
into s#ecial #rominence not many years ago .ut though it \ourishe% in
Germany! less in 2taly an% France! an% some"hat more in S#ain! it ha% no
long existence as an in%e#en%ent school! for it "as only too easily confute%
by the close seIuence of inexorable facts 3oreo$er! it coul% %o no more than
o##ose a fe" humanitarian arguments on the reformation of oRen%ers to the
tra%itional arguments of the theories of juris#ru%ence! of absolute an%
relati$e justice! of intimi%ation! utility! an% the li&e
;o %oubt the #rinci#le that #unishment ought to ha$e a reforming eRect u#on
the criminal sur$i$es as a ru%imentary organ in nearly all the schools "hich
concern themsel$es "ith crime .ut this is only a secon%ary #rinci#le! an% as
it "ere the in%irect object of #unishmentS an% besi%es! the obser$ations of
anthro#ology! #sychology! an% criminal statistics ha$e 'nally %is#ose% of it!
ha$ing establishe% the fact that! un%er any system of #unishment! "ith the
most se$ere or the most in%ulgent metho%s! there are al"ays certain ty#es of
criminals! re#resenting a large number of in%i$i%uals! in regar% to "hom
amen%ment is sim#ly im#ossible! or $ery transitory! on account of their
organic an% moral %egeneration ;or must "e forget that! since the natural
roots of crime s#ring not only from the in%i$i%ual organism! but also! in large
measure! from its #hysical an% social en$ironment! correction of the
in%i$i%ual is not su>cient to #re$ent rela#se if "e %o not also! to the best of
our ability! reform the social en$ironment The utility an% the %uty of
reformation none the less sur$i$e! e$en for the #ositi$e school! "hene$er it is
#ossible! an% for certain classes of criminalsS but! as a fun%amental #rinci#le
of a scienti'c theory! it has #asse% a"ay
/itherto! then! the classical school stan%s alone! "ith $arying sha%es of
o#inion! but one an% %istinct as a metho%! an% as a bo%y of #rinci#les an%
conseIuences @n% "hilst it has achie$e% its aim in the most recent #enal
co%es! "ith a great! an% too freIuently an excessi$e %iminution of
#unishments! so in res#ect of theory! in 2taly! Germany! an% France it has
cro"ne% its "or& "ith a series of master#ieces amongst "hich 2 "ill only
mention Carrara's ZZProgramme of Criminal =a"'' @s the author tells us in
one of his later e%itions! from the a #riori #rinci#le that ZZcrime is a fact
%e#en%ent u#on la"! an infraction rather than an action!'' he %e%uce%[an%
that by the sheer force of an a%mirable logic[a com#lete symmetrical
scheme of legal an% abstract conseIuences! "herein ju%ges are com#elle%!
"hether they li&e it or not! to %etermine the #osition of e$ery criminal "ho
comes before them
.ut no" the classical school! "hich s#rang from the mar$ellous little "or& of
.eccaria! has com#lete% its historic cycle 2t has yiel%e% all it coul%! an%
"riters of the #resent %ay "ho still cling to it can only recast the ol% material
The youngest of them! in%ee%! are con%emne% to a sort of .y9antine
%iscussion of scholastic formulas! an% to a sterile #rocess of scienti'c
rumination
@n% meantime! outsi%e our uni$ersities an% aca%emies! criminality continues
to gro"! an% the #unishments hitherto in\icte%! though they can neither
#rotect nor in%emnify the honest! succee% in corru#ting an% %egra%ing e$il-
%oers @n% "hilst our treatises an% co%es A"hich are too often mere treatises
cut u# into segmentsB lose themsel$es in the fog of their legal abstractions!
"e feel more strongly e$ery %ay! in #olice courts an% at assi9es! the necessity
for those biological an% sociological stu%ies of crime an% criminals "hich!
"hen logically %irecte%! can thro" light as nothing else can u#on the
a%ministration of the #enal la"
C/@PTE- 2
T/E *@T@ :F C-232;@= @;T/-:P:=:GP
The ex#erimental school of criminal sociology too& its original title from its
stu%ies of anthro#ologyS it is still commonly regar%e% as little more than a
ZZcriminal anthro#ology school'' @n% though this title no longer corres#on%s
"ith the %e$elo#ment of the school! "hich also ta&es into account an%
in$estigates the %ata of #sychology! statistics! an% sociology! it is none the
less true that the most characteristic im#etus of the ne" scienti'c mo$ement
"as %ue to anthro#ological stu%ies This "as cons#icuously the case "hen
=ombroso! gi$ing a scienti'c form to sun%ry scattere% an% fragmentary
obser$ations u#on criminals! a%%e% fresh life to them by a collection of
inIuiries "hich "ere not only original but also go$erne% by a %istinct i%ea!
an% establishe% the ne" science of criminal anthro#ology
2t is #ossible! of course! to %isco$er a $ery early origin for criminal
anthro#ology! as for general anthro#ologyS for! as Pascal sai%! man has
al"ays been the most "on%erful object of stu%y to himself For obser$ations
on #hysiognomy in #articular "e may go as far bac&"ar%s as to Plato! an% his
com#arisons of the human face an% character "ith those of the brutes! or
e$en to @ristotle! "ho still earlier obser$e% the #hysical an% #sychological
corres#on%ence bet"een the #assions of men an% their facial ex#ression @n%
after the me%iae$al gro#ings in chiromancy! metosco#y! #o%omancy an% so
forth! one comes to the se$enteenth century stu%ies in #hysiognomy by the
Qesuit ;iIuetius! by Cortes! Car%anus! *e la Chambre! *ella Porta! ]c! "ho
"ere #recursors of Gall! S#ur9heim! an% =a$ater on one si%e! an%! on the
other! of the mo%ern scienti'c stu%y of the emotions! "ith their ex#ression in
face an% gesture! con%ucte% by Cam#er! .ell! Engel! .urgess! *uchenne!
Gratiolet! Pi%erit! 3antega99a! SchaRhausen! Schac&! /eiment! an% abo$e all
by *ar"in
)ith regar% to the s#ecial obser$ation of criminals! o$er an% abo$e the
limite% statements of the ol% #hysiognomists an% #hrenologists! =au$ergne
A1E71B in France an% @ttomyr A1E7DB in Germany ha% accurately a##lie% the
theories of Gall to the examination of con$ictsS an% their "or&s! in s#ite of
certain exaggerations of #hrenology! are still a $aluable treasury of
obser$ations in anthro#ology 2n 2taly! *e -olan%is A1EGJB ha% #ublishe% his
obser$ations on a %ecease% criminalS in @merica! Sam#son A1E74B ha% trace%
the connection bet"een criminality an% cerebral organisationS in Germany!
Cam#er A1EJ7B #ublishe% a stu%y on the #hysiognomy of mur%erersS an% @$e
=allemant A1EJE-4DB #ro%uce% a long "or& on criminals! from the
#sychological #oint of $ie"
.ut the science of criminal anthro#ology! more strictly s#ea&ing! only begins
"ith the obser$ations of English gaol surgeons an% other learne% men! such
as Forbes )inslo" A1EJ7B! 3ayhe" A1E40B! Thomson A1E10B! )ilson A1E10B!
;icolson A1E1DB! 3au%sley A1E1GB! an% "ith the $ery notable "or& of *es#ine
A1E4EB! "hich in%ee% ga$e rise to the inIuiries of Thomson! an% "hich! in
s#ite of its lac& of synthetic treatment an% systematic unity! is still! ta&en in
conjunction "ith the "or& of @$e =allemant! the most im#ortant inIuiry in the
#sychological %omain anterior to the "or& of =ombroso
;e$ertheless! it "as only "ith the 'rst e%ition of ZZThe Criminal'' A1E14B that
criminal anthro#ology asserte% itself as an in%e#en%ent science! %istinct from
the main trun& of general anthro#ology! itself Iuite recent in its origin! ha$ing
come into existence "ith the "or&s of *aubenton! .lumenbach! Soemmering!
Cam#er! )hite! an% Pritchar%
The "or& of =ombroso set out "ith t"o original faults? the mista&e of ha$ing
gi$en un%ue im#ortance! at any rate a##arently! to the %ata of craniology
an% anthro#ometry! rather than to those of #sychologyS an%! secon%ly! that of
ha$ing mixe% u#! in the 'rst t"o e%itions! all criminals in a single class 2n
later e%itions these %efects "ere eliminate%! =ombroso ha$ing a%o#te% the
obser$ation "hich 2 ma%e in the 'rst instance! as to the $arious
anthro#ological categories of criminals This %oes not #re$ent certain critics
of criminal anthro#ology from re#eating! "ith a strange monotony! the
$enerable objections as to the ZZim#ossibility of %istinguishing a criminal
from an honest man by the sha#e of his s&ull!'' or of ZZmeasuring human
res#onsibility in accor%ance "ith %iRerent craniological ty#es''5D8
5D8 ,ol ii of the fourth e%ition of ZZThe Criminal'' A1EE0B is s#ecially
concerne% "ith the e#ile#tic an% i%iotic criminal Areferre% to alcoholism!
hysteria! mattoi%ismB "hether occasional or subject to $iolent im#ulseS "hilst
$ol i is concerne% only "ith congenital criminality an% moral insanity
.ut these original faults in no "ay obscure the t"o follo"ing note"orthy facts
[that "ithin a fe" years after the #ublication of ZZThe Criminal'' there "ere
#ublishe%! in 2taly an% else"here! a "hole library of stu%ies in criminal
anthro#ology! an% that a ne" school has been establishe%! ha$ing a %istinct
metho% an% scienti'c %e$elo#ments! "hich are no longer to be loo&e% for in
the classical school of criminal la"
2
)hat! then! is criminal anthro#ologyO @n% of "hat nature are its fun%amental
%ata! "hich lea% us u# to the general conclusions of criminal sociologyO
2f general anthro#ology is! accor%ing to the %e'nition of 3 %e Tuatrefages!
the natural history of man! as 9oology is the natural history of animals!
criminal anthro#ology is but the stu%y of a single $ariety of man&in% 2n other
"or%s! it is the natural history of the criminal man
Criminal anthro#ology stu%ies the criminal man in his organic an% #sychical
constitution! an% in his life as relate% to his #hysical an% social en$ironment[
just as anthro#ology has %one for man in general! an% for the $arious races of
man&in% So that! as alrea%y sai%! "hilst the classical obser$ers of crime
stu%y $arious oRences in their abstract character! on the assum#tion that the
criminal! a#art from #articular cases "hich are e$i%ent an% a##reciable! is a
man of the or%inary ty#e! un%er normal con%itions of intelligence an% feeling!
the anthro#ological obser$ers of crime! on the other han%! stu%y the criminal
'rst of all by means of %irect obser$ations! in anatomical an% #hysiological
laboratories! in #risons an% ma%houses! organically an% #hysically!
com#aring him "ith the ty#ical characteristics of the normal man! as "ell as
"ith those of the ma% an% the %egenerate
.efore recounting the general %ata of criminal anthro#ology! it is necessary
to lay #articular stress u#on a remar& "hich 2 ma%e in the original e%ition of
this "or&! but "hich our o##onents ha$e too freIuently ignore%
)e must carefully %iscriminate bet"een the technical $alue of
anthro#ological %ata concerning the criminal man an% their scienti'c function
in criminal sociology
For the stu%ent of criminal anthro#ology! "ho buil%s u# the natural history of
the criminal! e$ery characteristic has an anatomical! or a #hysiological! or a
#sychological $alue in itself! a#art from the sociological conclusions "hich it
may be #ossible to %ra" from it The technical inIuiry into these bio-
#sychical characteristics is the s#ecial "or& of this ne" science of criminal
anthro#ology
;o" these %ata! "hich are the conclusions of the anthro#ologist! are but
starting-#oints for the criminal sociologist! from "hich he has to reach his
legal an% social conclusions Criminal anthro#ology is to criminal sociology! in
its scienti'c function! "hat the biological sciences! in %escri#tion an%
ex#erimentation! are to clinical #ractice
2n other "or%s! the criminal sociologist is not in %uty boun% to con%uct for
himself the inIuiries of criminal anthro#ology! just as the clinical o#erator is
not boun% to be a #hysiologist or an anatomist ;o %oubt the %irect
obser$ation of criminals is a $ery ser$iceable stu%y! e$en for the criminal
sociologistS but the only %uty of the latter is to base his legal an% social
inferences u#on the #ositi$e %ata of criminal anthro#ology for the biological
as#ects of crime! an% u#on statistical %ata for the in\uences of #hysical an%
social en$ironment! instea% of contenting himself "ith mere abstract legal
syllogisms
:n the other han% it is clear that sun%ry Iuestions "hich ha$e a %irect
bearing u#on criminal anthro#ology[as! for instance! in regar% to some
#articular biological characteristic! or to its e$olutionary signi'cance[ha$e
no imme%iate obligation or $alue for criminal sociology! "hich em#loys only
the fun%amental an% most in%ubitable %ata of criminal anthro#ology So that
it is but a clumsy "ay of #ro#oun%ing the Iuestion to as&! as it is too
freIuently as&e%? ZZ)hat connection can there be bet"een the ce#halic
in%ex! or the trans$erse measurement of a mur%erer's ja"! an% his
res#onsibility for the crime "hich he has committe%O'' The scienti'c function
of the anthro#ological %ata is a $ery %iRerent thing! an% the only legitimate
Iuestion "hich sociology can #ut to anthro#ology is this?[ZZ2s the criminal!
an% in "hat res#ects is he! a normal or an abnormal manO @n% if he is! or
"hen he is abnormal! "hence is the abnormality %eri$e%O 2s it congenital or
contracte%! ca#able or inca#able of recti'cationO''
This is allS an% yet it is su>cient to enable the stu%ent of crime to arri$e at
#ositi$e conclusions concerning the measures "hich society can ta&e in or%er
to %efen% itself against crimeS "hilst he can %ra" other conclusions from
criminal statistics
@s for the #rinci#al %ata hitherto establishe% by criminal anthro#ology! "hilst
"e must refer the rea%er for %etaile% information to the "or&s of s#ecialists!
"e may re#eat that this ne" science stu%ies the criminal in his organic an% in
his #sychical constitution! for these are the t"o inse#arable as#ects of human
existence
@ beginning has naturally been ma%e "ith the organic stu%y of the criminal!
both anatomical an% #hysiological! since "e must stu%y the organ before the
function! an% the #hysical before the moral This! ho"e$er! has gi$en rise to a
host of misconce#tions an% one- si%e% criticisms! "hich ha$e not yet cease%S
for criminal anthro#ology has been charge%! by such as consi%er only the
most cons#icuous %ata "ith narro"ing crime %o"n to the mere result of
conformations of the s&ull or con$olutions of the brain The fact is that #urely
mor#hological obser$ations are but #reliminary ste#s to the histological an%
#hysiological stu%y of the brain! an% of the bo%y as a "hole
@s for craniology! es#ecially in regar% to the t"o %istinct an% characteristic
ty#es of criminals[mur%erers an% thie$es! an incontestable inferiority has
been note% in the sha#e of the hea%! by com#arison "ith normal men!
together "ith a greater freIuency of here%itary an% #athological %e#artures
from the normal ty#e Similarly an examination of the brains of criminals!
"hilst it re$eals in them an inferiority of form an% histological ty#e! gi$es
also! in a great majority of cases! in%ications of %isease "hich "ere freIuently
un%etecte% in their lifetime Thus 3 *ally! "ho for t"enty years #ast has
%is#laye% exce#tional acumen in #roblems of this &in%! sai% that ZZall the
criminals "ho ha% been subjecte% to auto#sy Aafter executionB ga$e e$i%ence
of cerebral injury''5G8
5G8 2n a %iscussion at the 3e%ico-Psychological Society of ParisS
ZZProcee%ings'' for 1EE1! i 0G! D44! DE0! 7EG
:bser$ations of the #hysiognomy of criminals! "hich no one "ill un%er$alue
"ho has stu%ie% criminals in their lifetime! "ith a%eIuate &no"le%ge! as "ell
as other #hysical inIuiries! external an% internal! ha$e sho"n the existence of
remar&able ty#es! from the greater freIuency of the tattooe% man to
exce#tionally abnormal con%itions of the frame an% the organs! %ating from
birth! together "ith many forms of contracte% %isease
Finally! inIuiries of a #hysiological nature into the re\ex action of the bo%y!
an% es#ecially into general an% s#eci'c sensibility! an% sensibility to #ain!
an% into re\ex action un%er external agencies! con%ucte% "ith the ai% of
instruments "hich recor% the results! ha$e sho"n abnormal con%itions! all
ten%ing to #hysical insensibility! %ee#-seate% an% more or less absolute! but
incontestably %iRerent in &in% from that "hich obtains amongst the a$erage
men of the same social classes
These are organic con%itions! it must be at once a>rme%! "hich account as
nothing else can for the un%eniable fact of the here%itary transmission of
ten%encies to crime! as "ell as of #re%is#osition to insanity! to suici%e! an% to
other forms of %egeneration
The secon% %i$ision of criminal anthro#ology! "hich is by far the more
im#ortant! "ith a more %irect in\uence u#on criminal sociology! is the
#sychological stu%y of the criminal This recognition of its greater im#ortance
%oes not #re$ent our critics from concentrating their attac& u#on the organic
characterisation of criminals! in obli$ion of the #sychological characterisation!
"hich e$en in =ombroso's boo& occu#ies the larger #art of the text578
578 @ recent exam#le of this infatuation amongst one-si%e%! an% therefore
ineRectual critics is the "or& of Colajanni! ZZSocialism an% Criminal
Sociology!'' Catania! 1EE0 2n the 'rst $olume! "hich is %e$ote% to criminal
anthro#ology! out of four hun%re% #ages of argumentati$e criticism A"hich
%oes not #re$ent the author from ta&ing our most fun%amental conclusions
on the anthro#ological classi'cation of criminals! an% on crime! as
#henomena of #sychical ata$ismB! there are only six #ages! DD1- DGD! for the
criticism of #sychological ty#es
Criminal #sychology #resents us "ith the characteristics "hich may be calle%
s#ecially %escri#ti$e! such as the slang! the han%"riting! the secret symbols!
the literature an% art of the criminalS an% on the other han% it ma&es &no"n
to us the characteristics "hich! in combination "ith organic abnormality!
account for the %e$elo#ment of crime in the in%i$i%ual @n% these
characteristics are grou#e% in t"o #sychical an% fun%amental abnormalities!
namely! moral insensibility an% "ant of foresight
3oral insensibility! "hich is %eci%e%ly more congenital than contracte%! is
either total or #artial! an% is %is#laye% in criminals "ho in\ict #ersonal
injuries! as much as in others! "ith a $ariety of sym#toms "hich 2 ha$e
recor%e% else"here! an% "hich are e$entually re%uce% to these con%itions of
the moral sense in a large number of criminals[a lac& of re#ugnance to the
i%ea an% execution of the oRence! #re$ious to its commission! an% the
absence of remorse after committing it
:utsi%e of these con%itions of the moral sense! "hich is no s#ecial sentiment!
but an ex#ression of the entire moral constitution of the in%i$i%ual! as the
tem#erament is of his #hysiological constitution! other sentiments! of
sel'shness or e$en of unsel'shness! are not "anting in the majority of
criminals /ence arise many illusions for su#er'cial obser$ers of criminal life
.ut these latter sentiments are either excessi$e! as hate! cu#i%ity! $anity an%
the li&e! an% are thus stimulants to crime! or else! as "ith religion! lo$e!
honour! loyalty! an% so on! they cease to be forces antagonistic to crime!
because they ha$e no foun%ation in a normal moral sense
From this fun%amental inferiority of sentiment there follo"s an inferiority of
intelligence! "hich! ho"e$er! %oes not exclu%e certain forms of craftiness!
though it ten%s to inability to foresee the conseIuences of crime! far in
excess of "hat is obser$e% in the a$erage members of the classes of society
to "hich the se$eral criminals belong
Thus the #sychology of the criminal is summe% u# in a %efecti$e resistance to
criminal ten%encies an% tem#tations! %ue to that ill-balance% im#ulsi$eness
"hich characterises chil%ren an% sa$ages
22
2 ha$e long been con$ince%! by my stu%y of "or&s on criminal anthro#ology!
but es#ecially by %irect an% continuous obser$ation from a #hysiological or a
#sychological #oint of $ie" of a large number of criminals! "hether ma% or of
normal intelligence! that the %ata of criminal anthro#ology are not entirely
a##licable! in their com#lete an% essential form! to all "ho commit crimes
They are to be con'ne% to a certain number! "ho may be calle% congenital!
incorrigible! an% habitual criminals .ut a#art from these there is a class of
occasional criminals! "ho %o not exhibit! or "ho exhibit in slighter %egrees!
the anatomical! #hysiological! an% #sychological characteristics "hich
constitute the ty#e %escribe% by =ombroso as ZZthe criminal man''
.efore further %e'ning these t"o main classes of criminals! in their natural
an% %escri#ti$e characterisation! 2 must a%% a #ositi$e %emonstration! "hich
can be atteste% un%er t"o %istinct forms[A1B by the results of
anthro#ological obser$ation of criminals! an% ADB by statistics of rela#se! an%
of the manifestations of crime "hich anthro#ologists ha$e hitherto chie\y
stu%ie%
@s for organic anomalies! as 2 cannot here treat the "hole matter in %etail! 2
"ill sim#ly re#ro%uce from my stu%y of homici%e a summary of results for a
single category of these anomalies! "hich a metho%ical obser$ation of e$ery
class of criminals "ill carry further an% ren%er more #recise! as =ombroso has
alrea%y sho"n Asee the fourth e%ition of his "or&! 1EE0! # D1GB
/omici%es sentence%
To #enal To 2m#risonment Sol%iers
ser$itu%e
Persons in "hom 2 %etecte% AG74B AG4GB A111B
;o anomaly in the s&ull 110 #c ED #c G1D #c
:ne or t"o anomalies 71D '' J44 '' J1E ''
Three or four anomalies G00 '' D4 '' 11 ''
Fi$e or six anomalies 41 '' DG '' 0 ''
Se$en or more anomalies G '' G '' 0 ''
That is to say! men "ith normal s&ulls "ere three times as numerous amongst
sol%iers as they "ere amongst criminalsS of men "ith a note"orthy number of
anomalies occurring together Athree or fourB! there "ere three times as many
amongst criminals as amongst sol%iersS an% there "as not one sol%ier
amongst those "ho sho"e% an extraor%inary number A'$e or moreB
This #ro$es to %emonstration not only the greater freIuency of anomalous
s&ulls Aan% the same is true of #hysiognomical! #hysiological! an%
#sychological anomaliesB amongst criminals! but also that amongst these
criminals bet"een 'fty an% sixty #er cent sho" $ery fe" anomalies! "hilst
about one-thir% of the "hole number #resent a remar&able combination! an%
one-tenth are normal in this res#ect
@mongst the statistical %ata exhibiting the #rimary characteristics of the
majority of criminals! the %ata connecte% "ith rela#se% criminals are
es#ecially cons#icuous Though rela#ses! li&e 'rst oRences! are #artly %ue to
social con%itions! they also ha$e a manifest biological cause! since! un%er the
o#eration of the same #enal system! there are some liberate% #risoners "ho
rela#se an% some "ho %o not
The statistics of rela#se are unfortunately $ery %i>cult to collect! on account
of %iRerences in the legislation of %iRerent countries! an% in the #re#aration
of recor%s! "hich! e$en un%er the more general a%o#tion of anthro#ometrical
i%enti'cation! rarely succee% in #re$enting the use of fresh names by
#rofessional criminals So that "e may still say! in the "or%s of one "ho is a
$ery goo% ju%ge in this matter! 3 P$ernes! not only that ZZthe Prisons
Congress of =on%on A1E1DB "as com#elle% to lea$e $arious #roblems
un%eci%e% for lac& of %ocumentary e$i%ence! an% es#ecially the Iuestion of
rela#se% criminals!'' but also that to this %ay A1E10B! ZZ"e 'n% $arying results
in %iRerent countries! the exact signi'cance of "hich is not a##arent''
2 ha$e! ho"e$er! #ublishe% an essay on international statistics of rela#se%
criminals! from "hich 2 %re" the follo"ing general conclusion? that e$en in
#rison statistics! "hich often gi$e higher totals of rela#se% cases than are
gi$en by ju%icial statistics! because they are more #ersonal! an% therefore
less uncertain! "e ne$er obtain the full number of rela#ses! though the totals
gi$en $ary from country to country! from %istrict to %istrict! an% from #rison
to #rison 2t "oul% be im#ossible to state accurately "hat #ro#ortion the
numbers gi$en bear to the actual numberS but 2 am justi'e% in saying! from
all the materials "hich 2 ha$e collecte% an% com#are% in the aforesai% essay!
that the number of rela#ses in Euro#e is generally bet"een J0 an% 40 #er
cent! an% certainly rather abo$e than belo" this limit )hilst the 2talian
statistics! for instance! gi$e 17 #er cent of rela#ses amongst #risoners
sentence% to #enal ser$itu%e! 2 foun% by ex#erience G1 #er centS out of G74
"ho a%mitte% to me that they ha% rela#se%S an%! amongst those "ho ha%
been sentence% to sim#le im#risonment! 2 foun% 40 #er cent out of G4G! in
#lace of the GG #er cent recor%e% in the #rison statistics The %iRerence may
be %ue to the #articular con%itions of the #risons "hich 2 $isite%S but in any
case it establishes the ina%eIuacy of the o>cial 'gures %ealing "ith rela#se
@fter this statement of a general fact! "hich #ro$es! as =ombroso an% Es#inas
sai%! that ZZthe rela#se% criminal is the rule rather than the exce#tion!'' "e
can #rocee% to set %o"n the s#ecial #ro#ortions of rela#se for each #articular
crime! so as to obtain an in%ication of the forms of crime "hich are most
freIuently resorte% to by habitual criminals
For 2taly 2 ha$e foun% that the highest #ercentages of rela#se are aRor%e% by
#ersons con$icte% of theft an% #etty larceny! forgery! ra#e! manslaughter!
cons#iracy! an%! at the correctional courts! $agrancy an% men%acity The
lo"est #ercentages are amongst those con$icte% of assault an% bo%ily harm!
mur%ers! an% infantici%e
For France! "here legal statistics are remar&ably a%a#te% for the most minute
inIuiry! 2 ha$e %ra"n u# the follo"ing table of statistics from the lists of
#ersons con$icte% at the assi9e courts an% correctional tribunals! ta&ing an
a$erage of the years 1E11-E1! "hich is not sensibly aRecte% by the results of
succee%ing years
2t "ill be seen that the a$erage of rela#ses for crimes against the #erson is
higher than the a$erage for the most serious cases of mur%erous an%
in%ecent assault! "hich are clearly an outcome of the most anti-social
ten%encies Asuch as #arrici%e! mur%er! ra#e! in\icting bo%ily harm on #arents!
]cB Thus homici%e an% fatal "oun%ing! though rela#se is $ery freIuent in
these cases! still %is#lay a less abnormal an% more occasional character by
their lo"er #osition in the table! as sho"n in the cases of infantici%e!
concealment of birth! an% aban%onment of infants @s for the $ery freIuent
occurrence of rela#se in s#ecial crimes! such as assaults on o>cials an%
resistance to authority! "hich rarely come before the assi9e courts[though
e$en there they ten% to su##ort the higher numbers in the tribunals[these
are oRences "hich may also be committe% by criminals of e$ery &in%! an%
"hich! moreo$er! %e#en% in some measure on the social factor of #olice
organisation! an% freIuently on the #sycho-#athological state of #articular
in%i$i%uals
The some"hat rare occurrence of rela#se in such a gra$e ty#e of mur%er as
#oisoning is note"orthy .ut this is only an eRect of the s#ecial #sychology of
these criminals! as 2 ha$e ex#laine% else"here
F-@;CE[C@SES :F -E=@PSE! 1E11-E1 C:<-TS :F @SS2^E
C-23ES
A@gainst the #ersonB # 100
,iolence against #ublic o>cers EJE
.igamy J0G
)oun%ing #arents or gran%#arents JJ0
-iot JJG
Ui%na##ing of minors 74D
Sexual assault on a%ults 770
)ilful mur%er AassassinationB 7DG
Parrici%e 711
3anslaughter Ahomici%eB G07
Sexual assaults on chil%ren GEJ
@ttem#ts against rail"ays G1J
Serious "oun%s follo"e% by %eath G4E
[[
General a$erage GJE
@bortion G00
Perjury D41
SeIuestration 1EE
Poisoning 141
2nfantici%e 40
Stealing! substitution or aban%oning chil%ren 70
C-23ES
A@gainst #ro#ertyB # 100
Theft in churches 17G
Thefts! sim#le 111
-obbery! "ith $iolence! not on the high"ay 440
.urning buil%ings not inhabite%! "oo%s! etc J0E
[[
General a$erage JEJ
.arratry J00
Theft by ser$ants 77D
Counterfeiting 7GE
Forgery! #ri$ate "ritings 7DJ
.urning inhabite% %"ellings 71J
Forgery! commercial #a#er GEG
Forgery! #ublic %ocuments G10
Frau%ulent ban&ru#tcy GJG
@buse of con'%ence by %omestic ser$ant GDJ
Extortion G01
Embe99lement of #ublic fun%s DEJ
-obbing the mails by #ostal em#loyees
Smuggling by customs o>cers
C:--ECT2:;@= T-2.<;@=S
*E=2CTS # 100
2nfractions of sur$eillance 100
2nfractions of ex#ulsion of foreign fugiti$es 0G0
2nfractions of inter%iction to sojourn E00
*run&enness 1E7
,agabon%age 11G
.egging 4J1
Frau% AescroIuerieB 71E
2nsult to #ublic o>cers 74E
Forcible entry 7JG
Thefts 7JD
.reach of trust 7GE
[[
General a$erage 710
-iot! resistance 70G
)ritten or $erbal threats G04
Prohibite% "ea#ons! etc G1G
Political! electoral! an% ne"s#a#er %elicts GJ1
:utrage to #ublic morality G7J
Public outrage to %ecency GDD
,oluntary "oun%s an% blo"s G10
<nla"ful o#ening of cafes! inns D11
<nla"ful #ractice of me%icine or #harmacy D44
Contra$entions of rail"ay regulations DJG
/unting or carrying #rohibite% arms D7D
.reach of goo% morals! ten%ing to corru#tion DGE
Sim#le ban&ru#tcy DG4
2nsult to ministers of religion D07
Frau%ulent sales of merchan%ise 141
*efamations! insults! calumnies 17D
-ural %elicts 1D0
@mongst crimes against #ro#erty! the most freIuent rela#ses are foun% in the
case of thie$es Anot inclu%ing thefts an% breaches of trust by %omestic
ser$ants! "hich thus! #ro$ing their more occasional character! con'rm the
agreement of statistics "ith criminal #sychologyB The same thing is obser$e%
in regar% to forgers of commercial %ocuments an% to frau%ulent ban&ru#ts!
"ho are #artly %ra"n into crime un%er the stress of #ersonal or general
crises @n% the infreIuency of rela#se amongst #ostal em#loyees con%emne%
for embe99lement! an% amongst customs o>cers "ho ha$e been guilty of
smuggling! is only a further con'rmation of the in%ucement to crime by the
o##ortunities met "ith in each case! rather than by #ersonal ten%encies
@mongst minor oRences! a#art from that e$asion of su#er$ision "hich is no
more than a legal con%ition! there are! both in France an% in 2taly! $ery
freIuent cases of rela#se by $agabon%s an% men%icants! "hich is a
conseIuence of social en$ironment! as "ell as of the feeble organisation of
the in%i$i%uals :ther rela#ses abo$e the a$erage! inclu%e% amongst these
oRences! constitute a sort of accessory criminality! existing si%e by si%e "ith
the habitual criminality of thie$es! mur%erers! an% the li&e! such as
%run&enness! attac&s on #ublic functionaries! infractions of the regulations of
%omicile! ]c
2n thefts an% resistance to authorities! rela#se is less freIuent here than in
the assi9e courts! for in the majority of these minor oRences! in their general
forms! there is a greater number of occasional oRences! as is also the case
"ith ban&ru#tcies! %efamation! abuse! rural oRences! ]c! "hich %emonstrate
their more occasional character by their $ery lo" 'gures
/ence the statistics of general an% s#eci'c rela#se in%irectly con'rm the fact
that criminals! as a "hole! ha$e no uniform anthro#ological ty#eS an% that the
bio-#sychical ty#es an% anomalies belong more es#ecially to the category of
habitual criminals an% those born into the criminal class! "ho! after all! are
the only ones hitherto stu%ie% by criminal anthro#ologists
)hat! then! is the numerical #ro#ortion of habitual criminals to the aggregate
number of criminalsO
2n the absence of %irect inIuiry! it is #ossible to get at this #ro#ortion
in%irectly! from facts of t"o &in%s 2n the 'rst #lace! a stu%y of the "or&s on
criminal anthro#ology su##lies us "ith an a##roximate 'gure! since the
biological characteristics unite% in in%i$i%uals! in su>cient number to create
a criminal ty#e! are met "ith in bet"een forty an% 'fty #er cent of the total
@n% this conclusion may be con'rme% by other %ata of criminal statistics
)hilst the statistics of rela#se gi$e us a $ery limite% number of crimes an%
oRences committe% by born an% habitual criminals! science an% criminal
legislation gi$e us a far more exten%e% classi'cation
Ellero rec&one% in the #enal co%e of the German Em#ire D0G crimes an%
oRencesS an% 2 'n% that the 2talian co%e of 1EJ0 enumerates about 1E0! the
ne" co%e about D00! an% the French #enal co%e about 1J0 Thus the &in% of
crimes of habitual criminals "oul% only be about one-tenth of the com#lete
legal classi'cation of crimes an% oRences
2t is easy in%ee% to su##ose that born an% habitual criminals %o not generally
commit #olitical crimes an% oRences! nor oRences connecte% "ith the #ress!
nor against free%om of "orshi#! nor in corru#tion of #ublic functionaries! nor
misuse of title or authorityS nor calumny! ma&ing false attestations or false
re#ortsS nor a%ultery! incest! or ab%uction of minorsS nor infantici%e! abortion!
or #alming of chil%renS nor betrayal of #rofessional secretsS nor ban&ru#tcy
oRences! nor %amage to #ro#erty! nor $iolation of %omicile! nor illegal arrests!
nor %uels! nor %efamation! nor abuse 2 say generallyS for! as there are
occasional criminals "ho commit the oRences characteristic of habitual
criminality! such as homici%es! robberies! ra#es! ]c! so there are born
criminals "ho sometimes commit crimes out of their or%inary course
2t is no" necessary to a%% a fe" statistical %ata in res#ect of the classi'cation
of crime! "hich 2 ta&e! li&e the others! from the essay alrea%y mentione%
/@.2T<@= C-232;@=2TP 2T@=P F-@;CE .E=G2<3 Ahomici%e! theft! cons#iracy!
ra#e! incen%iarism! $agrancy! s"in%lingB @+ .+ C+ @+ .+ C+ @+ .+ C+
[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[
Pro#ortion of the #ersons #c #c #c #c #c #c #c #c #c con$icte% of
these crimes an% oRences to the total number of con$ictions E7 GD GE 00
G7 GJ E4 G0 G0
_+ ;:TE? @! . an% C abo$e are Z@ssi9es!' ZTribunals!' an% ZTotals!'
res#ecti$ely`
That is to say! habitual criminality "oul% be re#resente%! in 2taly! by about 70
#er cent of the total number of con%emne% #ersons! an% by some"hat less
in France an% .elgium This "oul% be accounte% for in .elgium by the
exclusion of $agrancyS but the %iRerence is $irtually %ue to the greater
freIuency in 2taly of certain crimes! such as homici%e! high"ay robbery "ith
$iolence! an% cons#iracies
Further! it is a##arent that in all these countries the ty#es of habitual
criminality! "ith the exce#tion of thefts an% $agrancy! are in greater
#ro#ortion at the assi9es! on account of their serious character
The actual totals! ho"e$er! are larger at the tribunals! for as! in the scale of
animal life! the greatest fecun%ity belongs to the lo"er an% smaller forms! so
in the criminal scale! the less serious oRences Asuch as sim#le theft!
s"in%ling! $agrancy! ]cB are the more numerous Thus! out of the total of GE
#er cent in 2taly! GD belong to the tribunals an% 4 to the assi9esS out of GJ
#er cent in France! GG belong to the tribunals an% D to the assi9esS an% out of
G0 #er cent in .elgium! D0 belong to the tribunals an% 1 to the assi9es This
also is #artly accounte% for by legislati$e %istinctions as to the res#ecti$e
juris%ictions of these courts
@s to the #articulars of the totals! it is foun% that thefts are the most
numerous ty#es in 2taly AD0 #er centB! in France AD7 #er centB! in .elgium
ADG #er centB! an% in Prussia AG1 #er cent! inclu%ing breaches of trustB5J8
5J8 Star&e! ZZ,erbrechen un% ,erbrecher in Preussen!'' .erlin! 1EE7! # 0D
@fter theft! the most numerous in 2taly are $agrancy AJ #er centB! homici%es
A7 #er centB! s"in%ling AG #er centB! forgery A0 #er centB! ra#e A7 #er
centB! cons#iracy A7 #er centB! an% incen%iarism AD #er centB
2n France an% .elgium "e 'n% the same relati$e freIuency of $agrancy an%
s"in%lingS but homici%e! incen%iarism! an% cons#iracy are less freIuent!
"hilst ra#e is more common in France AJ #er centB an% in .elgium A1 #er
centB
Such then are the most freIuent forms of habitual criminality in the
generality of con%emne% #ersonsS an% it "ill be useful no" to contrast the
more freIuent forms of occasional criminality For 2taly the only ju%icial
statistics "hich are $aluable for %etaile% inIuiry are those of 1E4G! 1E40-1D
For France! e$ery $olume of the a%mirable series of criminal statistics may be
utilise%
2t "ill be seen that the freIuency of these occasional crimes an% oRences in
2taly an% in France is $ery $ariable! though assaults an% "oun%ing! resistance
to authorities! %amage! %efamation an% abuse! are the most numerous in
both countries
The #ro#ortion of each oRence to the total also $aries consi%erably! not only
through a %iRerence of legislation bet"een 2taly an% France in regar% to
#oaching! %run&enness! frau%s on refreshment-house &ee#ers! an% so forth!
but also by reason of the %iRerent con%ition of in%i$i%uals an% of society in
the t"o countries Thus assaults an% "oun%ing! "hich in 2taly com#rise DG
#er cent of the total of con$ictions! reach in France no more than 17 #er
cent! "hilst resistance to the authorities! ]c! "hich
PE@-=P @,E-@GE or C:;*E3;E*
PE-S:;S
2T@=P! 1E4G-1D F-@;CE
1E11-E1
C-23ES @;* :FFE;CES :F G-E@TEST
F-ET<E;CP
Anot inclu%ing those of /abitual CriminalsB
#c #c #c #c
)ilful @ssault an% )oun%ing a
2llegally carrying @rms aa [ E 1 [ G G
-esistance to @uthority! @ssaults an%
,iolence against Public Functionaries a G J 7 [D 10 10
2njury to Pro#erty a a a [ D D [ 2 1-4 1 J
*efamation an% @buse a a a [ s-S 1-4 [ 2-4 1 J
)ritten or S#o&en Threats a a [ 1 7 1'D [ 'D [D
2llegal Games a a a a [ 2 [E [ D 1 '2
Political Crimes an% :Rences aa G11 [ [D [ 7 D [D
Press Crimes an% :Rences a a 7 7 [7 [ [4 [4
Embe99lement! Corru#tion! 3alfeasance
of Public Functionaries [ [G G [ [ [
Esca#e from *etention [1 [D D [ [4 [4
False )itness a a a [1 D [D 00 4 [4
,iolation of *omicile a a a [ 11 1J [ lo [0
Calumny a [ [1 2 1 [oS [oE
Ex#osure! Palming or ZZSu##ression''
of 2nfants [ [1D 1 [D [1 [1
.an&ru#tcy :Rences a a a 2 1 [1 1'G J [4
:Rences against -eligion an% 3inisters
of -eligion [ 1 [1 [ [1 01
*uelling a a a a [ 07 0G [ [ [
@bortion a a a a a [ [ [ og [ [:2
:Rences against the Game =a"s [ [ [ [ 1G 1D-1
*run&enness [ [ [ [ 1 J 1 J
:Rences against Public *ecency [ [ [ [ 2-E 11
@%ultery a a a a a [ [ [ [J J
:Rences against 3orality! "ith 2ncitement
to 2mmorality a a [ [ [ [ [D [D
2n$oluntary /omici%e [ [ [ [ [D [D
'' )oun%ing [ [ [ [ [4 [4
'' 2ncen%iarism [ [ [ [ [D [D
2llegal Practising of 3e%icine an%
Surgery a a a a a [ [ [ [ [D [D
Frau%s on Uee#ers of -efreshment
/ouses a a a a a [ [ [ [ 2-7 1 7
-ural :Rences a a a a [ [ [ [ 4 [4
[ [ m
WWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWW
W
Pearly @$erage of Con$ictions!
Gross Totals 4!D1G 7G!JE7 70!EJ1 G!G00 14G!001
141!D01
518 *e$astation of cro#s! %estruction of fences 5D8 <nauthorise% gaming
housesS secret lotteries 5G8 @n exce#tional 'gure! o"ing to JDE con$ictions in
1E4G! "hilst the a$erage of the other years "as nine con$ictions 578 Electoral
oRences
are 7 #er cent in 2taly! touch 0 #er cent in France Sexual crimes an%
oRences Aas "e sa" in the case of ra#eB! such as abortion! a%ultery! in%ecent
assaults! an% incitement to immorality! "hich in 2taly #resent $ery small an%
negligible 'gures! are more freIuent in France )hilst the illegal carrying of
arms! threats! false "itness! esca#e from %etention! $iolations of %omicile!
calumny! are of greater freIuency in 2taly than in France! the contrary is true
of ban&ru#tcy oRences! #olitical an% #ress crimes an% oRences! on account of
a manifest %iRerence of the moral! economic! an% social con%itions of the t"o
countries! "hich are #lainly %iscernible behin% these a##arently %ry 'gures
2n a%%ition to this %emonstration! "e ha$e gi$en anthro#ological an%
statistical #roofs of the fun%amental %istinction bet"een habitual an%
occasional criminals! "hich ha% been #ointe% out by many obser$ers! but
"hich ha% hitherto remaine% a sim#le assertion "ithout manifest
conseIuences
This same %istinction ought to be not only the basis of all sociological theory
concerning crime! but also a #oint of %e#arture for other %istinctions more
#recise an% com#lete! "hich 2 set forth in my #re$ious stu%ies on criminals!
an% "hich "ere subseIuently re#ro%uce%! "ith more or less of assent! by all
criminal sociologists
2n the 'rst #lace! it is necessary to %istinguish! amongst habitual criminals!
those "ho #resent a cons#icuous an% clinical form of mental aberration!
"hich accounts for their anti-social acti$ity
2n the secon% #lace! amongst habitual criminals "ho are not of unsoun%
min%! ho"e$er little the inmates of #risons may ha$e been obser$e% "ith
a%eIuate i%eas an% ex#erience! there is a clear in%ication of a class of
in%i$i%uals! #hysically or mentally abnormal! in%uce% to crime by inborn
ten%encies! "hich are manifest from their birth! an% accom#anie% by
sym#toms of extreme moral insensibility Si%e by si%e "ith these! another
class challenges attention! of in%i$i%uals "ho ha$e also been criminals from
chil%hoo%! an% "ho continue to be so! but "ho are in a s#ecial %egree a
#ro%uct of #hysical an% social en$ironment! "hich has #ersistently %ri$en
them into the criminal life! by their aban%onment before an% after the 'rst
oRence! an% "hich! es#ecially in the great to"ns! is $ery often force% u#on
them by the actual incitement of their #arents
@mongst occasional criminals! again! a s#ecial category is create% by a &in%
of exaggeration of the characteristics! mainly #sychological! of the ty#e itself
2n the case of all occasional criminals! the crime is brought about rather by
the eRects of en$ironment than by the acti$e ten%encies of the in%i$i%ualS
but "hilst in most of these in%i$i%uals the %eci%ing cause is only a
circumstance aRecting all ali&e! "ith a fe" it is an exce#tional constraint of
#assion! a sort of #sychological tem#est! "hich %ri$es them into crime
Thus! then! the entire bo%y of criminals may be classe% in '$e categories!
"hich as early as 1EE0 2 %escribe% as criminal ma%men! born criminals!
criminals by contracte% habits! occasional criminals! an% criminals of #assion
@s alrea%y obser$e%! criminal anthro#ology "ill not 'nally establish itself until
it has been %e$elo#e% by biological! #sychological! an% statistical
monogra#hs on each of these categories! in such a manner as to #resent
their anthro#ological characteristics "ith greater #recision than they ha$e
hitherto attaine% So far! obser$ers continue to gi$e us the same
characteristics for a large aggregate of criminals! classifying them accor%ing
to the form of their crime rather than accor%ing to their bio-social ty#e 2n
=ombroso's "or&! for instance! or in that of 3arro Aan% to some extent e$en in
my "or& on homici%eB! the characteristics are state% for a total! or for legal
categories of criminals! such as mur%erers! thie$es! forgers! an% so on! "hich
inclu%e born criminals! occasional an% habitual criminals! an% ma%men The
result is a certain measure of inconsistency! accor%ing to the #re%ominance
of one ty#e or the other in the aggregate of criminals un%er obser$ation This
also contributes to ren%er the conclusions of criminal anthro#ology less
e$i%ent
;e$ertheless! "e may sum u# the inIuiries "hich ha$e been ma%e u# to the
#resent timeS an% in #articular "e may no" #oint out the general
characteristics of the '$e classes of criminals! in accor%ance "ith my
#ersonal ex#erience in the obser$ation of criminals 2t is to be ho#e% that
successi$e obser$ations of a more metho%ical &in% "ill gra%ually reinforce
the accuracy of this classi'cation of sym#toms
2n the 'rst #lace! it is e$i%ent that in a classi'cation not exclusi$ely biological!
if it is to form the anthro#ological basis of criminal sociology! criminals of
unsoun% min% must in all fairness be inclu%e%
The usual objection! recently re#eate% by 3 Qoly AZZ=e Crime!'' # 4DB! "hich
hol%s the term ZZcriminal ma%ness'' to be self- contra%ictory! since a ma%man
is not morally res#onsible! an% therefore cannot be a criminal! is not
conclusi$e )e maintain that res#onsibility to society! the only res#onsibility
common to all criminals! exists also for criminals of unsoun% min%
;or! again! is it correct to say! "ith 3 .ianchi! that ma% criminals shoul% be
referre% to #sychiatry! an% not to criminal anthro#ologyS for! though
#sychiatry is concerne% "ith ma% criminals in a #sycho-#athological sense!
this %oes not #re$ent criminal anthro#ology an% sociology from also
concerning themsel$es "ith the same subjects! in or%er to constitute the
natural history of the criminal! an% to suggest reme%ies in the interest of
society
@s for criminals of unsoun% min%! it is necessary to begin by #lacing in a
se#arate category such as cannot! after the stu%ies of =ombroso an% the
2talian school of #sychiatry! be %istinguishe% from the born criminals #ro#erly
so-calle% These are the #ersons tainte% "ith a form of insanity "hich is
&no"n un%er $arious names! from the ZZmoral insanity'' of Pritchar% to the
ZZreasoning ma%ness'' of ,erga 3oral insanity! illustrate% by the "or&s of
3en%el! =egran% %u Saulle! 3au%sley! UraRt-Ebing! Sa$age! /ugues!
/ollan%er! Tamburini! .on$ecchiato! "hich! "ith the lac& or atro#hy of the
moral or social sense! an% of @PP@-E;T soun%ness of min%! is #ro#erly
s#ea&ing only the essential #sychological con%ition of the born criminal
.eyon% these morally insane #eo#le! "ho are $ery rare[for! as UraRt-Ebing
an% =ombroso ha$e #ointe% out! they are foun% more freIuently in #risons
than in ma%-houses[there is the unha##ily large bo%y of #ersons tainte% by
a common an% clinical form of mental alienation! all of "hom are a#t to
become criminal
The "hole of these criminals of unsoun% min% cannot be inclu%e% in a single
categoryS an% such! in%ee%! is the o#inion ex#resse% by =ombroso! in the
secon% $olume of the fourth e%ition of his "or&! after his %escri#ti$e analysis
of the chief forms of mental alienation @s a matter of fact! not only are the
organic! an% es#ecially the #sychological! characteristics of criminal ma%men
sometimes i%entical "ith an% sometimes o##ose% to those of born an%
occasional criminals! but these $ery characteristics $ary consi%erably
bet"een the %iRerent forms of mental alienation! in s#ite of the i%entity of
the crime committe%
2t is further to be obser$e%! in res#ect of criminal ma%men! that this category
also inclu%es all the interme%iary ty#es bet"een com#lete ma%ness an% a
rational con%ition! "ho remain in "hat 3au%sley has calle% the ZZmi%%le
9one'' The most freIuent $arieties in the criminality of these #artially insane
#ersons! or ZZmattoi%es!'' are the #er#etrators of attac&s u#on statesmen!
"ho are generally men "ith a grie$ance! irascible men! "riters of insane
%ocuments! an% the li&e! such as Passanante! Guiteau! an% 3aclean
2n the same category are those "ho commit terrible crimes "ithout moti$e!
an% "ho ne$ertheless! accor%ing to the com#lacent #sychology of the
classical school! "oul% be cre%ite% "ith a maximum of moral soun%ness
@gain! there are the necro#hiles! li&e Sergeant .ertran%! ,er9eni! 3enesclou!
an% $ery #robably the un%etecte% ZZQac& the -i##er'' of =on%on! "ho are
tainte% "ith a form of sexual #sycho#athy Pet again there are such as are
tainte% "ith here%itary ma%ness! an% es#ecially the e#ile#tics an%
e#ile#toi%s! "ho may also be assigne% to the class of born criminals!
accor%ing to the #lausible hy#othesis of =ombroso as to the fun%amental
i%entity of congenital criminality! moral ma%ness! an% e#ile#sy 2 ha$e al"ays
foun% in my o"n ex#erience that outrageous mur%ers! not to be ex#laine%
accor%ing to the or%inary #sychology of criminals! are accom#anie% by
#sychical e#ile#sy! or lar$ea
.orn or instincti$e criminals are those "ho most freIuently #resent the
organic an% #sychological characteristics establishe% by criminal
anthro#ology These are either sa$age or brutal men! or crafty an% i%le! "ho
%ra" no %istinction bet"een homici%e! robbery or other &in%s of crime! an%
honest in%ustry ZZThey are criminals just as others are goo% "or&ingmen!''
says FregierS an%! as -omagnosi #ut it! actual #unishment aRects them much
less than the menace of #unishment! or %oes not aRect them at all! since
they regar% im#risonment as a natural ris& of their occu#ation! as masons
regar% the fall of a roof! or as miners regar% 're-%am# ZZThey %o not suRer in
#rison They are li&e a #ainter in his stu%io! %reaming of their next
master#iece They are on goo% terms "ith their gaolers! an% e$en &no" ho"
to ma&e themsel$es useful''5J8
5J8 3oreau! ZZSou$enirs %e la #etite et gran%e -oIuette!'' Paris! 1EE7! ii 770
The born criminals an% the occasional criminals constitute the majority of the
characteristic an% %i$erse ty#es of homici%e an% thief Prison go$ernors call
them ZZgaol-bir%s'' They #ass on from the #olice to the ju%ge an% to the
#rison! an% from the #rison to the #olice an% to the ju%ge! "ith a regularity
"hich has not yet im#aire% the faith of la"-ma&ers in the e>cacy of
#unishment as a cure for crime548
548 )aylan%! ZZThe 2ncorrigible!'' in the Qournal of 3ental Science! 1EEE
Sichart! ZZCriminal 2ncorrigibles''
;o %oubt the i%ea of a born criminal is a %irect challenge to the tra%itional
belief that the con%uct of e$ery man is the outcome of his free "ill! or at most
of his lac& of e%ucation rather than of his original #hysio-#sychical
constitution .ut! in the 'rst #lace! e$en #ublic o#inion! "hen not #reju%ice%
in fa$our of the so-calle% conseIuences of irres#onsibility! recognises in many
familiar an% e$ery%ay cases that there are criminals "ho! "ithout being ma%!
are still not as or%inary menS an% the re#orters call them ZZhuman tigers!''
ZZbrutes!'' an% the li&e @n% in the secon% #lace! the scienti'c #roofs of these
here%itary ten%encies to crime! e$en a#art from the clinical forms of mental
alienation! are no" so numerous that it is useless to insist u#on them further
The thir% class is that of the criminals "hom! after my #rison ex#erience! 2
ha$e calle% criminals by contracte% habit These are they "ho! not #resenting
the anthro#ological characteristics of the born criminals! or #resenting them
but slightly! commit their 'rst crime most commonly in youth! or e$en in
chil%hoo%[ almost in$ariably a crime against #ro#erty! an% far more through
moral "ea&ness! in%uce% by circumstances an% a corru#ting en$ironment!
than through inborn an% acti$e ten%encies @fter this! as 3 Qoly obser$es!
either they are le% on by the im#unity of their 'rst oRences! or! more
%ecisi$ely! #rison associations %ebilitate an% corru#t them! morally an%
#hysically! the cell %egra%es them! alcoholism ren%ers them stu#i% an%
subject to im#ulse! an% they continually fall bac& into crime! an% become
chronically #rone to it @n% society! "hich thus aban%ons them! before an%
after they lea$e their #rison! to "retche%ness! i%leness! an% tem#tations!
gi$es them no assistance in their struggle to gain an honest li$elihoo%! e$en
"hen it %oes not thrust them bac& into crime by harassing #olice regulations!
"hich #re$ent them from 'n%ing or &ee#ing honest em#loyment518
518 Fliche! ZZComment en %e$ient Criminel!'' Paris! 1EE4
:f those criminals "ho begin by being occasional criminals! an% en%! after
#rogressi$e %egeneration! by exhibiting the features of the born criminals!
Thomas 3ore sai%! ZZ)hat is this but to ma&e thie$es for the #leasure of
hanging themO'' @n% it is just this class of criminals "hom measures of social
#re$ention might re%uce to a minimum! for by abolishing the causes "e
abolish the eRects
@#art from their organic an% #sychological characteristics! innate or acIuire%!
there are t"o bio-sociological sym#toms "hich seem to me to be common!
though for %istinct reasons! to born criminals an% habitual criminals 2 mean
#recocity an% rela#se The occasional crime an% the crime of #assion %o not!
as a rule! occur before manhoo%! an% rarely or ne$er lea% to rela#se
/ere are a fe" 'gures concerning #recocity! %eri$e% from international #rison
statistics?[
P-2S:;E-S <;*E- D0 PE@-S :F @GE 3ale Female
WWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWW
#c #c
2taly A1E11[4B a a a a a a a EE 4E
France A'1D-JB a a a a a a a 10 14
Prussia A'11-1[not o$er 10 yearsB a a a DE D4
@ustria A'1D-JB a a a a a a a 04 104
/ungary A'1D-4B a a a a a a a 7D 0
Englan% A'1D-1 B[not o$er D7B a a a a D17 17E
Scotlan% A'1D-1B a a a a a a a D0 1E
2relan% A'1D-1B a a a a a a a 0 GD
.elgium A'17-JB a a a a a a a D0E [-
/ollan% A'1D-1B a a a a a a a DDE G1
S"e%en A'1G-1B a a a a a a a 101 11
S"it9erlan% A'17B a a a a a a a 44 1
*enmar& A'17-JB a a a a a a a 00 04
[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[
3ore recent 'gures sho" that the yearly a$erage in France! for 1E14-E0! out
of 7!G17 #ersons brought to trial! "as 1 #er cent un%er sixteen years of age!
an% 11 #er cent bet"een sixteen an% t"enty-oneS "hilst in 1EE4 the same
#ercentages "ere 40 an% 17 :ut of 174!D11 accuse% before the tribunals
there "ere 7 #er cent un%er sixteen! an% 17 #er cent bet"een sixteen an%
t"enty- one :ut of DJ!1GJ females there "ere 7 #er cent un%er sixteen! an%
11 #er cent bet"een sixteen an% t"enty-oneS "hilst in 1EE4 the #ercentages
"ere G an% 17 of males! DJ an% 17 of females
2n Prussia! of #ersons accuse% of crimes an% oRences in 1E40-10! 7 #er cent
"ere un%er eighteen years
2n Germany! of #ersons con%emne% in 1EE4! G #er cent "ere bet"een t"el$e
an% 'fteen! 4 #er cent bet"een 'fteen an% eighteen! an% 14 #er cent
bet"een eighteen an% t"enty-one years
2n 2taly! out of J!1E0 #ersons con%emne% at the assi9es in 1EE1! G #er cent
"ere bet"een fourteen an% eighteen! an% 1D #er cent bet"een eighteen an%
t"enty-one :ut of 4J!4D7 trie% before the tribunals! 1D #er cent "ere un%er
fourteen! J #er cent "ere bet"een fourteen an% eighteen! an% 1G #er cent
bet"een eighteen an% t"enty-one There is a continual increase of #recocious
criminals in 2taly Prisoners con%emne% at the assi9es un%er the age of
t"enty-one stoo% at 1J #er cent from 1EE0 to 1EE1! "hilst those of a similar
age "ho "ere trie% before the tribunals rose from 11 to D0 #er cent
To these numerical %ata may be a%%e% others of a Iuali'cati$e character!
sho"ing that #recocity is most freIuent in res#ect of the natural crimes an%
oRences "hich are usually obser$e% amongst born an% habitual criminals
2n France the younger #risoners in 1EED ha% been sentence% in the follo"ing
#ro#ortions?[
3ale Female For mur%er an% #oisoning a a 00 #er cent J #er cent ''
homici%e! assaults! an% "oun%ing 14 '' 1J '' '' incen%iarisma a a a 1E '' D
'' '' in%ecent assault a a a GJ '' 11E '' '' s#eci'e% thefts! forgery! uttering
false coin a a a a JD '' D7 '' '' sim#le theft! s"in%ling a 40E '' 701 '' ''
men%acity an% $agrancy a DG '' D0J '' '' other crimes an% oRences a D1 '' E
'' '' %e'ance of #arents a a 1 '' 10J ''
These 'gures! sho"ing a greater freIuency amongst females of #recocious
crimes against the #erson! an% amongst males against #ro#erty! are
a##roximately re#eate% in S"it9erlan%! "here young #risoners in 1E10-17
ha% been sentence% in these #ro#ortions?[
For crimes an% oRences against the #erson a 1D1 #er cent '' '' '' morality a
J1 '' '' incen%iarisma a a a a a a 7G '' '' theft a a a a a a a a 4JJ ''
'' s"in%ling a a a a a a a J7 '' '' forgery a a a a a a a 10 '' ''
$agrancy a a a a a a a 74 ''
The ju%icial statistics of France an% 2taly gi$e these #ro#ortions?[
_F2N T/2S T@.=E(`
2T@=P[1E44 F-@;CE[1EE4
@SS2^E C:<-TS <n%er 17[1E DE[D1 <n%er j l4[D
/omici%e a a a a #c #c #c #c #c
3ur%erAan% robbery "ith homici%eB 17 1 i 10 G 1 4
Parrici%e aa a a a [ J [E 1 J 0
2nfantici%e a a a a [ 1 [7 [ 4
2m#risonment a a a a [ [ [
)ilful "oun%ing Afollo"e% by %eathB [ 10 D7 [ G S
@bortion aa a a a [ [ [ 1-1
-a#e an% in%ecent assault on a%ults`[ 1'D
'' '' chil%ren`[ 10 1 t G 1 11
-esistance to an% attac&s on #ublic
functionaries a a a [ J [4 [ G
2ncen%iarism [ [ [D G-1 G 1
False money 17 [ 1 G-1 D J
Forgery in #ublic an% #ri$ate %ocu-
ments aa a a a [ J [D [ D [1
Extortion! high"ay robbery "ith
$iolence a a a a 17 0 1 [ G" 4
S#eci'e% an% sim#le theft a 17 10 14 71 J1
<nintentional "oun%ing a DE J D [ [
[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[
Total of con%emne% an% accuse% 1 110 71J D1 471
The French statistics for the tribunals[no com#lete 2talian statistics being
a$ailable! are as follo"s?[
F-@;CE[1EE4 C:--ECT2:;@= T-2.<;@=S
le Female :Rences <n%er 14 14[D1 <n%er 141 14[D1 #er cent #er cent
#er cent #er cent
-esistance to authorities a a D D D '1 1 1
@ssaults on #ublic functionaries [E J [1 7 1
,agrancy a a [ 7 7 11 D G D S'S
3en%acity a a a 7 E 7 1D'- G 4
)ilful "oun%ing a a a J 1 1E-J G00 11
<nintentional "oun%ing a E 1 1
:Rences against #ublic %ecency 1 4 1 E G 1 G
*efamation an% abuse - 1 'D 1 1 1 0
Theft a a a a a J1 J a[7 4G J7 G
Frau%s on refreshment-house &ee#ers [1 D 1 [1 4
S"in%ling J 1 D D7 G bD
.reach of con'%ence a a 0 1 G 1 1 D
2njury to cro#s an% #lants a J [G [G J
Game-la" oRences a [ 1J 1 17 D 1 l [D
[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[[
Total of accuse%
/ere "e ha$e a statistical %emonstration of a more freIuent #recocity!
amongst $arious forms of criminality! in res#ect of inborn ten%encies Amur%er
an% homici%e! ra#e! incen%iarism! s#eci'c theftsB! or in res#ect of ten%encies
contracte% by habit Asim#le theft! men%acity! $agrancyB
@lso this characteristic of #recocity is accom#anie% by that of rela#se! "hich
accor%ingly "e ha$e seen to be more freIuent in the same forms of natural
criminality! an% "hich "e can no" tabulate in res#ect of its #ersistency in
these born an% habitual criminals
2t has been "ell sai% that the large number of rela#se% #ersons "ho are
brought to trial year after year #ro$es that thie$es #ly their tra%e as a regular
callingS the thief "ho has once taste% #rison life is sure to return to it5E8 @n%
again! there are $ery fe" cases in "hich a man or a "oman "ho has turne%
thief ceases to be one )hate$er the reason may be! as a matter of fact the
thief is rarely or ne$er reforme% )hen you can turn an ol% thief into an
honest "or&er! you may turn an ol% fox into a house %og508
5E8 Tuarterly -e$ie"! 1E11! ZZThe =on%on Police'' 508 Thomson! ZZThe
Psychology of Criminals!'' Qournal of 3ental Science! 1E10
)e must! ho"e$er! rea% these testimonies of #ractical men! "hich coul%
easily be multi#lie%! in the light of our %istinction bet"een incorrigible
criminals! "ho are so from their birth! an% such as are ma%e incorrigible by
the eRect of their #rison an% social en$ironment The former coul% scarcely
be re%uce% in number! "hilst the latter coul% be consi%erably %iminishe% by
the #enal alternati$es of "hich 2 "ill s#ea& later
The follo"ing statistics of rela#se are Iuote% from P$ernes!
ZZ=a -eci%i$e en Euro#e'' AParis! 1E17B?[
F-@;CE[1ED4-17
2T@=P[1E10
-ela#ses E;G=@;*[1E11 S)E*E;[1E11 @ccuse% @ccuse%
Prisoners Thie$es an% brought an% brought
to trial to trial
:nce a a GE #er cent J7 #er cent 7J #er cent 40 #er cent
T"ice a 1E '' DE '' D0 '' G0 ''
Three timesa 77 '' 1E '' GJ '' 10 ''
2n Prussia A1E1E-EDB! 11 #er cent ha% rela#se% once! 14 #er cent t"ice! 14
#er cent three times! 1G #er cent four times! 10 #er cent '$e times! an% DE
#er cent six times or oftener5108
5108 Star&e! ZZ,erbrechen un% ,erbrecher!'' .erlin! 1EE7! # DD0
@t the Prisons Congress of Stoc&holm the follo"ing 'gures "ere gi$en for
Scotlan% :ut of a total of forty-nine rela#se% #risoners! 14 #er cent ha%
rela#se% once! 1G #er cent t"ice or three times! 4 #er cent four or '$e
times! 4 #er cent from six to ten times! J #er cent from ten to t"enty times!
7 #er cent from t"enty to 'fty times! an% 1 #er cent more than 'fty times
@t the meeting of the Social Science Congress! hel% at =i$er#ool! in 1E14! 3r
;ugent state% that u#"ar%s of 7!101 "omen ha% rela#se% four times or
oftener! an% that many of them "ere classe% as incorrigible! ha$ing been
con$icte% t"entyS forty! or 'fty times! "hilst one ha% been con$icte% 1G0
times
The ju%icial statistics of 2taly for 1EE1 gi$e the follo"ing results?[
2T@=P[Con$icte%! #er cent -ela#ses
Qustices of Tribunals @ssi9es
Peace
:nce a a a a J1 7D J0
T"o to '$e times a G7 70 70
3ore than '$e times a 0 1E 10
[[[[[[[[[[[[[[[[[[[[[[[[[[[[
@ctual totals of rela#ses D1!04E 14!D70 1!E10
2 ha$e foun% from my inIuiries amongst G74 con%emne% to #enal ser$itu%e
an% GJG #risoners from the correctional tribunals the follo"ing #ercentages?[
-ela#se% Con$icts 2m#risone% :nce a a EGD a a D4 T"ice a a 1DJ a a
14J G times a a G1 a a a 174 7 '' a a [ a a a 10E J '' a a 4E a a
a 44 4 '' a a [ a a a JD 1 '' a a 14 a a a 11 E '' a a [ a a a DE
0 '' a a [ a a a DE 10 '' a a [ a a a DG 11 '' a a [ a a a 0 1D '' a
a [ a a a J 1G '' a a [ a a a 0 17 '' a a [ a a a 17 1J '' a a [ a
a a 0 D0 '' a a [ a a a J
[[[[[[[[[[[[[[[[[[[[[[[[ @ctual totals of rela#ses 1DE
D1D
Chronic rela#se is naturally less freIuent in the case of those con%emne% to
long termsS but it is a cons#icuous sym#tom of in%i$i%ual an% social
#athology in the t"o classes of born an% habitual criminals
=ombroso! in the secon% $olume of his "or& on ZZThe Criminal!'' %enies that
#recocity an% rela#se are characteristics %istinguishing born an% habitual
from occasional criminals .ut it is only a Iuestion of terms /e consi%ers that
born an% habitual criminals con'ne themsel$es almost exclusi$ely to serious
crime! an% occasional criminals to minor oRences @n% as the 'gures "hich 2
ha$e gi$en sho" that #recocity an% rela#se are e$en more freIuent for minor
oRences than for crimes! he thin&s that they contra%ict instea% of con'rming
my conclusions
The mere seriousness of an act cannot by any means %i$i%e the categories of
criminalsS for homici%e as "ell as theft! assault an% battery as "ell as forgery!
may be committe%! though in %iRerent #sychological an% social con%itions! as
easily by born an% habitual criminals as by occasional criminals an% criminals
of #assion
3oreo$er! the 'gures "hich 2 ha$e gi$en sho" that #recocity an% rela#se are
more freIuent in the forms of criminality "hich! a#art from their gra$ity! are
the common #ractices of born an% habitual criminals! such as mur%er!
homici%e! robbery! ra#e! ]c! "hilst they are far more uncommon! e$en if
they can be sai% to be obser$e% at all! in the case of the crimes an% oRences
usually committe% by occasional criminals! such as infantici%e! an% certain of
the oRences mentione% abo$e
2t remains to say something of the occasional criminals! an% the criminals of
#assion
The latter are but a $ariety of the occasional criminals! but their
characteristics are so s#eci'c that they may be $ery rea%ily %istinguishe% 2n
fact =ombroso! in his secon% e%ition! su##lementing the obser$ations of
*es#ine an% .ittinger! se#arate% them from other criminals! an% classi'e%
them accor%ing to their sym#toms 2 nee% only summarise his obser$ations
2n the 'rst #lace! the criminals "ho constitute the strongly mar&e% class of
criminals by irresistible im#ulse are $ery rare! an% their crimes are almost
in$ariably against the #erson Thus! out of 11 criminals of #assion inIuire%
into by =ombroso! 40 "ere homici%es! 4 ha% in a%%ition been con$icte% of
theft! G of incen%iarism! an% 1 of ra#e
2t may be sho"n that they number about J #er cent of crimes against the
#erson
They are as a rule #ersons of #re$ious goo% beha$iour! sanguine or ner$ous
by tem#erament! of excessi$e sensibility! unli&e born or habitual criminals!
an% they are often of a neurotic or e#ile#toi% tem#erament! of "hich their
crimes may be! strictly s#ea&ing! an unrecognise% conseIuence
FreIuently they transgress in their youth! es#ecially in the case of "omen!
un%er stress of a #assion "hich su%%enly s#urns constraint! li&e anger! or
outrage% lo$e! or injure% honour They are highly emotional before! %uring! or
after the crime! "hich they %o not commit treacherously! but o#enly! an%
often by ill- chosen metho%s! the 'rst that #resent themsel$es ;o" an% then!
ho"e$er! one encounters criminals of #assion "ho #reme%itate a crime! an%
carry it out treacherously! either by reason of their col%er an% less im#ulsi$e
tem#erament! or as the outcome of #reconcei$e% i%eas or a "i%es#rea%
sentiment! in cases "here "e ha$e to %o "ith a #o#ular form of la"lessness!
such as the $en%etta
This is "hy the test of #reme%itation has no absolute $alue in criminal
#sychology! as a %istinction bet"een the born criminal an% the criminal of
#assionS for #reme%itation %e#en%s es#ecially on the tem#erament of the
in%i$i%ual! an% is exem#li'e% in crimes committe% by both anthro#ological
ty#es
@mongst other sym#toms of the criminal of #assion! there is also the #recise
moti$e "hich lea%s to a crime com#lete in itself! an% ne$er as a means of
attaining another criminal #ur#ose
These oRen%ers imme%iately ac&no"le%ge their crime! "ith unassume%
remorse! freIuently so &een that they instantly commit! or attem#t to commit
suici%e )hen con$icte%[as they sel%om are by a jury[they are al"ays
re#entant #risoners! an% amen% their li$es! or %o not become %egra%e%! so
that in this "ay they encourage su#er'cial obser$ers to a>rm as a general
fact! an% one #ossible in all circumstances! that ameliorati$e eRect of
im#risonment "hich is really a mere illusion in the case of the far more
numerous classes of born an% habitual criminals
2n these same oRen%ers "e $ery rarely obser$e! if at all! the organic
anomalies "hich create a criminal ty#e @n% e$en the #sychological
characteristics are much slighter in countries "here certain crimes of #assion
are en%emic! almost ran&ing amongst the customs of the community! li&e the
homici%es "hich occur in Corsica an% Sar%inia for the $in%ication of honour!
or the #olitical assassinations in -ussia an% 2relan%
The last class is that of occasional criminals! "ho "ithout any inborn an%
acti$e ten%ency to crime la#se into crime at an early age through the
tem#tation of their #ersonal con%ition! an% of their #hysical an% social
en$ironment! an% "ho %o not la#se into it! or %o not rela#se! if these
tem#tations %isa##ear
Thus they commit those crimes an% oRences "hich %o not in%icate natural
criminality! or else crimes an% oRences against #erson or #ro#erty! but un%er
#ersonal an% social con%itions altogether %iRerent from those in "hich they
are committe% by born an% habitual criminals
There is no %oubt that! e$en "ith the occasional criminal! some of the causes
"hich lea% him into crime belong to the anthro#ological classS for external
causes "oul% not su>ce "ithout in%i$i%ual #re%is#ositions For instance!
%uring a scarcity or a har% "inter! not all of those "ho ex#erience #ri$ation
ha$e recourse to theft! but some #refer to en%ure "ant! ho"e$er un%eser$e%!
"ithout ceasing to be honest! "hilst others are at the utmost %ri$en to beg
their foo%S an% amongst those "ho yiel% to the suggestion of crime! some
sto# short at sim#le theft! "hilst others go as far as robbery "ith $iolence
.ut the true %iRerence bet"een the born an% the occasional criminal is that!
"ith the former! the external cause is less o#erati$e than the internal
ten%ency! because this ten%ency #ossesses! as it "ere! a centrifugal force!
%ri$ing the in%i$i%ual to commit crime! "hilst! for the occasional criminal! it is
rather a case of feeble #o"er of resistance against external causes! to "hich
most of the in%ucement to crime is %ue
The casual #ro$ocation of crime in the born criminal is generally the outcome
of an instinct or ten%ency alrea%y existing! an% far more of a #retext than an
occasion of crime )ith the occasional criminal! on the other han%! it is the
casual #ro$ocation "hich matures! no %oubt in a fa$ouring soil! the gro"th of
criminal ten%encies not #re$iously %e$elo#e%
For this reason =ombroso calls the occasional criminals ZZcriminaloi%s!'' in
or%er to sho" #recisely that they ha$e a %istinctly abnormal constitution!
though in a less %egree than the born criminals! just as "e ha$e the metal
an% the metalloi%! the e#ile#tic an% the e#ile#toi%
@n% this! again! is the reason "hy =ombroso's criticisms on my %escri#tion of
occasional criminals are lac&ing in force /e says! as .ene%i&t sai% at the
Congress at -ome! that all criminals are criminals by birth! so that there is no
such thing as an occasional criminal! in the sense of a ;:-3@= in%i$i%ual
casually launche% into crime .ut 2 ha$e not! any more than Garofalo! %ra"n
such a #icture of the occasional criminal! for as a matter of fact 2 ha$e sai%
#recisely the o##osite! as in%ee% =ombroso himself ac&no"le%ges a little
further on Aii 7DDB! namely! that bet"een the born an% the occasional
criminal there is only a %iRerence of %egree an% mo%ality! as in all the
criminal classes
To cite a fe" %etails of criminal #sychology! it may be state% that of the t"o
#hysiological con%itions of crime! moral insensibility an% im#ro$i%ence!
occasional crime is es#ecially %ue to the latter! an% inborn an% habitual crime
to the former )ith the born criminal it is! abo$e all! the lac& or the "ea&ness
of moral sense "hich fails to "ithstan% crime! "hereas "ith the occasional
criminal the moral sense is almost normal! but inability to realise beforehan%
the conseIuences of his act causes him to yiel% to external in\uences
E$ery man! ho"e$er #ure an% honest he may be! is conscious no" an% then
of a transitory notion of some %ishonest or criminal action .ut "ith the
honest man! exactly because he is #hysically an% morally normal! this notion
of crime! "hich simultaneously summons u# the i%ea of its grie$ous
conseIuences! glances oR the surface of the normal conscience! an% is a
mere \ash "ithout the thun%er )ith the man "ho is less normal an% has less
forethought! the notion %"ells! resists the "ea& re#ulsion of a not too
$igorous moral sense! an% 'nally #re$ailsS for! as ,ictor /ugo says! ZZFace to
face "ith %uty! to hesitate is to be lost''5118
5118 For instance! 2 "ill recall a fact "hich 3orel has relate% of himself! ho"
one %ay! as he "as crossing a bri%ge in Paris! he sa" a "or&ing-man ga9ing
into the "ater! an% a homici%al i%ea \ashe% across his min%! so that he ha%
to hurry a"ay! for fear of yiel%ing to the tem#tation to thro" the man into the
"ater @gain! there is the case of /umbol%t's nurse! "ho "as attac&e% one
%ay by the tem#tation to &ill her charge! an% ran "ith him to his mother in
or%er to a$oi% a %isaster .rierre %e .oismont also tells us of a learne% man
"ho! at the sight of a #icture in a #ublic gallery! "as tem#te% to cut the
can$as! an% ran a"ay from his im#ulse to crime
The criminal of #assion is one "ho is strong enough to resist or%inary
tem#tations of no exce#tional force! to "hich the occasional criminal "oul%
yiel%! but "ho %oes not resist #sychological storms "hich in%ee% are
sometimes actually irresistible
The forms of occasional criminality! "hich are %etermine% by these or%inary
tem#tations! are also %etermine% by age! sex! #o$erty! "orl%ly in\uences!
in\uences of moral en$ironment! alcoholism! #ersonal surroun%ings! an%
imitation Tar%e has ably %emonstrate% the #ersistent in\uence of these
con%itions on the actions of men
2n this connection! =ombroso has %ra"n a clear %istinction bet"een t"o
$arieties of occasional criminals? the ZZ#seu%o-criminals!'' or normal human
beings "ho commit in$oluntary oRences! or oRences "hich %o not s#ring
from #er$ersity! an% %o not hurt society! though they are #unishable by la"!
an% ZZcriminaloi%s!'' "ho commit or%inary oRences! but %iRer from true
criminals for the reasons alrea%y gi$en
@ 'nal obser$ation is necessary in regar% to this anthro#ological classi'cation
of criminals! an% it meets $arious objections raise% by our syllogistic critics
The %iRerence existing amongst the '$e categories is only one of %egree! an%
%e#en%s u#on their organic an% #sychological ty#es! an% u#on the in\uence
of #hysical an% social en$ironment
2n e$ery natural classi'cation the %iRerences bet"een $arious grou#s an%
$arieties are ne$er anything but relati$e This %e#ri$es them of none of their
theoretical an% #ractical im#ortance! an% so it is "ith this anthro#ological
classi'cation of criminals
2t follo"s that! as in natural history "e a%$ance by %egrees an% sha%es from
the inorganic to the organic creation! life beginning in the mineral %omain
"ith the la"s of crystallisation! so in criminal anthro#ology "e #ass by
%egrees an% sha%es from the ma% to the born criminal! through the lin&s of
moral ma%men an% e#ile#ticsS an% from the born criminal to the occasional!
through the lin& of the habitual criminal! "ho begins by being an occasional
criminal! an% en%s by acIuiring an% transmitting to his chil%ren the
characteristics of the born criminal @n% 'nally! "e #ass from the occasional
criminal to the criminal of #assion! "ho is but a s#ecies of the other! an% "ho
further! "ith his neurotic an% e#ile#toi% tem#erament! not infreIuently
a##roximates to the criminal of unsoun% min%
Thus in our e$ery%ay life! as in science! "e $ery often 'n% interme%iate
ty#es! for com#lete an% unmixe% ty#es are al"ays the most uncommon @n%
"hilst legislators an% ju%ges! in their com#lacent #sychology! exact an%
establish mar&e% lines of clea$age bet"een the sane an% the insane criminal!
ex#erts in #sychiatry an% anthro#ology are often constraine% to #lace a
#risoner some"here bet"een the ma% an% the born criminal! or bet"een the
occasional criminal an% the normal man
.ut it is e$i%ent that e$en "hen a criminal cannot be classe% #recisely in one
or the other category! an% stan%s bet"een the t"o! this is in itself a
su>ciently %e'nite classi'cation! es#ecially from a sociological #oint of $ie"
There is conseIuently no "eight in the objection of those "ho! basing their
argument on an abstract an% nebulous i%ea of the criminal in general! an%
ju%ging him merely accor%ing to the crime "hich has been committe%!
"ithout &no"ing his #ersonal characteristics an% the circumstances of his
en$ironment! a>rm that criminal anthro#ology cannot classify all "ho are
%etaine% an% accuse%
2n my ex#erience! ho"e$er! as a counsel an% as an obser$er! 2 ha$e ne$er
ha% any %i>culty in classifying all #ersons %etaine% or con%emne% for crimes
an% oRences! by relying u#on organic! an% es#ecially u#on #sychological
sym#toms
Thus! as Garofalo recently sai%! "hilst the acce#te% criminal science
recognises only t"o terms! the oRence an% the #unishment! criminal
sociology on the other han% recognises three? the crime! the criminal! an% the
means best calculate% for social self- %efence @n% it may be conclu%e% that
u# to this time! science! legislation! an%! in a minor %egree! but "ithout any
scienti'c metho%! the a%ministration of justice! ha$e ju%ge% an% #unishe%
crime in the #erson of the criminal! but that hereafter it "ill be necessary to
ju%ge the criminal as "ell as the crime
@fter these general obser$ations on the anthro#ological classes of criminals!
it might seem necessary to establish their res#ecti$e numerical #ro#ortions
.ut as there is no absolute se#aration bet"een one an% another! an% as the
freIuency of the se$eral criminal ty#es $aries accor%ing to the crimes or
oRences! natural or other"ise! against #ersons or #ro#erty! no #recise
account can be ren%ere% of the criminal "orl% as a "hole
.y "ay of a##roximation! ho"e$er! it may be sai% in the 'rst #lace that the
classes of ma% criminals an% criminals of #assion are the least numerous! an%
re#resent something li&e J or 10 #er cent of the total
:n the other han%! "e ha$e seen that born an% habitual criminals are about
70 or J0 #er centS so that the occasional criminals "oul% also be bet"een 70
an% J0 #er cent
These are 'gures "hich naturally $ary accor%ing to the %iRerent grou#s of
crime an% of criminals "hich come un%er obser$ation! an% "hich cannot be
more accurately %etermine% "ithout a series of s#ecial stu%ies in criminal
anthro#ology! as 2 sai% "hen ans"ering the objections "hich ha$e been
raise% against the metho%s of this no$el science
2t remains for us! before conclu%ing our 'rst cha#ter! to establish a fact of
great scienti'c an% #ractical $alue This is that! after the anthro#ological
classi'cation "hich 2 ha$e maintaine% for some ten years #ast! all "ho ha$e
been %e$oting themsel$es to the subject of crime as regar%e% from a
biological an% social stan%#oint ha$e recognise% the nee% for a classi'cation
less sim#le than that of habitual an% occasional criminals! an% "hich "ill be
more or less com#lex accor%ing to the criterion "hich may be a%o#te%
2n the 'rst #lace! the necessity is generally recognise% of aban%oning the ol%
arbitrary an% algebraic ty#e in fa$our of a classi'cation "hich shall
corres#on% more accurately "ith the facts of the case This classi'cation!
originating in obser$ations ma%e "ithin the #rison "alls! 2 ha$e exten%e% in
the %omain of criminal sociology! "herein it is no" establishe% as a
fun%amental criterion of legislati$e measures "hich must be ta&en as a
#rotection against criminals! as "ell as a criterion of their res#onsibility
Secon%ly! the classi'cations of criminals hitherto gi$en are not essentially
an% integrally %istinct 2t has been seen! as a matter of fact! that all the
classi'cations "hich ha$e been set forth amount to a recognition of four
ty#es! the born! the insane! the occasional criminals! an% the criminals of
#assionS an% this again resol$es itself into the sim#le an% #rimiti$e %istinction
bet"een occasional an% instincti$e criminals The category of criminals by
contracte% habit "oul% not be acce#te% by all obser$ers! but it corres#on%s
too closely to our %aily ex#erience to stan% in nee% of further #roof @n% on
the other han% 2 must fran&ly %ecline to acce#t the authority of those "ho #ut
for"ar% classi'cations more or less symmetrical "ithout ha$ing ma%e a %irect
stu%y of criminalsS for the ex#erimental metho% %oes not a%mit systems
base% on mere imagination! or on $ague recollections of criminal trials! or on
argumentati$e constructions built u# from the systems of others
@s a matter of fact! a#art from the %iRerences of nomenclature! it is e$i%ent
that the #artial %iscre#ancies in this anthro#ological classi'cation of criminals
are %ue in some measure to the %iRerent #oints of $ie" ta&en by obser$ers
For instance! the classi'cation of =acassagne! Qoly! Urauss! .a%i&! an% 3arro
rest u#on a #urely %escri#ti$e criterion of the organic or #sychological
characteristics of criminals The classi'cations of =is9t! 3e%em! an% 3in9loR!
on the other han%! %e#en% solely u#on the curati$e an% %efensi$e in\uence
of #unishmentS an% those of Foehring an% Star&e u#on certain s#ecial #oints
of $ie"! such as the assistance of release% #risoners! on their ten%ency to
rela#se
3y o"n #oint of $ie"! on the contrary! has been general an% re#ro%ucti$e! for
my classi'cation is base% u#on the natural causes of crime! in%i$i%ual!
#hysical! an% social! an% to this extent it corres#on%s more closely "ith the
theoretical an% #ractical reIuirements of criminal sociology 2f the curati$e art
of society! li&e that of in%i$i%uals! ex#ects from #ositi$e &no"le%ge an
in%ication of reme%ies! it is clear that a classi'cation base% on the
fun%amental causes of crime is best 'tte% to in%icate a social cure for this
manifestation of %isease! "hich is the essential object of criminal sociology
For! as in biology one is carrie% from #urely %escri#ti$e anatomy to genetic
anatomy an% #hysiology! so in sociology "e must #ass on from #urely legal
%escri#tions of crimes to the genetic &no"le%ge of the criminals "ho commit
these crimes
For this reason all the chief classi'cations of criminals! as has been seen! may
be brought into line "ith my o"n! by $irtue of the more com#lete an% fruitful
test "hich has establishe% it @n% thus "e ha$e a manifest #roof that this
classi'cation actually re#resents the common an% #ermanent basis of all the
chief anthro#ological categories of criminals! "hether in regar% to their
natural causality an% their s#eci'c character! or in regar% to the %iRerent
forms of social self-%efence "hich s#ring out of them! an% "hich must be
a%a#te% to the natural causes of crime! an% to the #rinci#al criminal ty#es
.ut "hate$er classi'cation may be acce#te%! "e shall al"ays ha$e! as the
fun%amental axiom of criminal anthro#ology! this $ariety in the ty#es of
criminals! "hich must henceforth be in%is#ensable to all "ho are theoretically
or #ractically concerne% "ith crime
C/@PTE- 22
T/E *@T@ :F C-232;@= ST@T2ST2CS
For moral an% social facts! unli&e #hysical an% biological facts! ex#eriment is
$ery %i>cult! an% freIuently e$en im#ossibleS obser$ation in this %omain
brings the greatest ai% to scienti'c research @n% statistics are amongst the
most e>cacious instruments of such obser$ation
2t is natural! therefore! that criminal sociology! after stu%ying the in%i$i%ual
as#ect of the natural genesis of crime! shoul% ha$e recourse to criminal
statistics for the stu%y of the social as#ect Statistical information in the
"or%s of Urohne! ZZis the 'rst con%ition of success in o##osing the armies of
crime! for it %ischarges the same function as the 2ntelligence %e#artment in
"ar''
From statistics! in fact! the mo%ern i%ea of the close relation bet"een
oRences an% the con%itions of social life! in some of its as#ects! an% abo$e all
in certain #articular forms! has most %irectly s#rung
The science of criminal statistics is to criminal sociology "hat histology is to
biology! for it exhibits! in the con%itions of the in%i$i%ual elements of the
collecti$e organism! the factors of crime as a social #henomenon @n% that
not only for scienti'c in%uctions! but also for #ractical an% legislati$e
#ur#osesS for! as =or% .rougham sai% at the =on%on Statistical Congress in
1E40! ZZcriminal statistics are for the legislator "hat the chart an% the
com#ass are for the na$igator''
The ex#erimental school! acce#ting the fun%amental an% incontestible i%ea!
a#art from its numerical an% o#timistic exaggerations! that the statistics of
crime must be consi%ere% in regar% to the gro"th an% acti$ity of the
#o#ulation! has o#ene% u# an entirely ne" channel of fruitful obser$ations! in
the classi'cation an% stu%y of the natural factors of crime
2n my ZZStu%ies of Crime in France'' A1EE1B 2 arrange% in three natural or%ers
the "hole series of causes lea%ing to crime! "hich ha% #re$iously been
in%icate% in a fragmentary an% incom#lete manner51D8
51D8 .entham! in his ZZ2ntro%uction to the Princi#les of 3orals an%
=egislation!'' enumerates the follo"ing circumstances as necessary to be
consi%ere% in legislation?[tem#erament! health! strength! #hysical
im#erfections! culture! intellectual faculties! strength of min%! %is#ositions!
i%eas of honour an% religion! feelings of sym#athy an% anti#athy! insanity!
economic con%itions! sex! age! social status! e%ucation! #rofession! climate!
race! go$ernment! religious #rofession
=ombroso! in the secon% e%ition of his ZZCriminal!'' "hich embraces all the
%i$isions of his classical "or&! has ma%e but a ra#i% enumeration of the
#rinci#al #oints?[race ci$ilisation! #o$erty! here%ity! age sex! ci$il status!
#rofession! e%ucation! organic anomalies! sensations imitation 3orselli!
treating of suici%e! has gi$en a fuller classi'cation of its contributory causes?
["orl%ly or natural in\uences! ethnical or %emogra#hical in\uences! social
in\uences! bio#sychical in\uences
From the consi%eration that human actions! "hether honest or %ishonest!
social or anti-social! are al"ays the outcome of a man's #hysio-#sychical
organism! an% of the #hysical an% social atmos#here "hich surroun%s him! 2
ha$e %ra"n attention to the anthro#ological or in%i$i%ual factors of crime! the
#hysical factors! an% the social factors
The anthro#ological factors! inherent in the in%i$i%ual criminal! are the 'rst
con%ition of crimeS an% they may be %i$i%e% into three sub-classes! accor%ing
as "e regar% the criminal organically #hysically! or socially
The organic constitution of the criminal com#rises all anomalies of the s&ull!
the brain! the $ital organs! the sensibility! an% the re\ex acti$ity! an% all the
bo%ily characteristics ta&en together! such as the #hysiognomy! tattooing!
an% so on
The mental constitution of the criminal com#rises anomalies of intelligence
an% feeling! es#ecially of the moral sense! an% the s#ecialities of criminal
"riting an% slang
The #ersonal characteristics of the criminal com#rise his #urely biological
con%itions! such as race! age! sexS bio-social con%itions! such as ci$il status!
#rofession! %omicile! social ran&! instruction! e%ucation! "hich ha$e hitherto
been regar%e% as almost the exclusi$e concern of criminal statistics
The #hysical factors of crime are climate! the nature of the soil! the relati$e
length of %ay an% night! the seasons! the a$erage tem#erature! meteoric
con%itions! agricultural #ursuits
The social factors com#rise the %ensity of #o#ulationS #ublic o#inion!
manners an% religionS family circumstancesS the system of e%ucationS
in%ustrial #ursuitsS alcoholismS economic an% #olitical con%itionsS #ublic
a%ministration! justice an% #oliceS an% in general! legislati$e! ci$il an% #enal
institutions )e ha$e here a host of latent causes! commingling an%
combining in all #arts of the social organism! "hich generally esca#e the
notice both of theorists an% of #ractical men! of criminologists an% of
legislators
This classi'cation of the natural factors of crime! "hich has in%ee% been
acce#te% by almost all criminal anthro#ologists an% sociologists! seems to me
more #recise an% com#lete than any other "hich has been #ro#ose%
2n res#ect of this classi'cation of the natural factors of crime! it is necessary
to ma&e t"o 'nal obser$ations as to the #ractical results "hich may be
obtaine% in the struggle for just la"s an% against the transgression of them
2n the 'rst #lace! o"ing to ZZthe %isco$ery of the unex#ecte% relation
amongst the $arious forces of nature! "hich ha% #re$iously been thought to
be in%e#en%ent!'' "e must lay stress on this #ositi$e %e%uction! that "e
cannot 'n% an a%eIuate reason either for a single crime or for the aggregate
criminality of a nation if "e %o not ta&e into account each an% all of the
%iRerent natural factors! "hich "e may isolate in the exigencies of our
stu%ies! but "hich al"ays act together in an in%issoluble union
;o crime! "hoe$er commits it! an% in "hate$er circumstances! can be
ex#laine% exce#t as the outcome of in%i$i%ual free-"ill! or as the natural
eRect of natural causes Since the former of these ex#lanations has no
scienti'c $alue! it is im#ossible to gi$e a scienti'c ex#lanation of a crime Aor
in%ee% of any other action of man or bruteB unless it is consi%ere% as the
#ro%uct of a #articular organic an% #sychical constitution! acting in a
#articular #hysical an% social en$ironment
Therefore it is far from being exact to assert that the #ositi$e criminal school
re%uces crime to a #urely an% exclusi$ely anthro#ological #henomenon @s a
matter of fact! this school has al"ays from the beginning maintaine% that
crime is the eRect of anthro#ological! #hysical! an% social con%itions! "hich
e$ol$e it by their simultaneous an% inse#arable o#eration @n% if inIuiries
into biological con%itions ha$e been more abun%ant an% more cons#icuous by
their no$elty! this in no "ay contra%icts the fun%amental conclusion of
criminal sociology
That being state%! "e ha$e still to examine the relati$e $alue of these three
classes of con%itions in the natural e$olution of crime
2t seems to me that this Iuestion is generally state% inaccurately! an% also
that it cannot be ans"ere% absolutely! an% in a "or%
2t is generally state% inaccuratelyS because they "ho thin&! for instance! that
crime is nothing else than a #urely an% exclusi$ely social #henomenon in the
e$olution of "hich the organic an% #sychical anomalies of the criminal ha$e
ha% no #art! ignore more or less consciously the uni$ersal correlation of
natural forces! an% forget that! in regar% to any #henomenon "hatsoe$er! it is
im#ossible to set an absolute limit to the net"or& of its causes! imme%iate
an% remote! %irect an% in%irect
To #ut this Iuestion in an arbitrary sense "oul% be li&e as&ing if a mammal is
the #ro%uct of its lungs! or its heart! or its stomach! or of $egetable
constituents! or of the atmos#hereS "hereas each of these con%itions!
internal an% external! is necessary to the life of the animal
2n fact! if crime "ere the exclusi$e #ro%uct of the social en$ironment! ho"
coul% one ex#lain the familiar fact that in the same social en$ironment! an%
in i%entical circumstances of #o$erty! aban%onment! lac& of e%ucation! sixty
#er cent %o not commit crimes! an%! of the other forty! '$e #refer suici%e!
'$e go ma%! '$e sim#ly become beggars or tram#s not %angerous to society!
"hilst the remaining t"enty-'$e actually commit crimesO @n% amongst the
latter! "hilst some go no further than theft "ithout $iolence! "hy %o others
commit theft "ith $iolence! an% e$en &ill their $ictim outright! before he
oRers resistance! or threatens them! or calls for hel#! an% this "ith no other
object than gainO
The secon%ary %iRerences of social con%ition! "hich may be obser$e% e$en
amongst the members of a single family! rotting in one of the slums of our
great to"ns! or amongst those "ho are surroun%e% by the tem#tations of
money or #o"er! or the li&e! are clearly not enough in themsel$es to ex#lain
the $ast %iRerences in the actions "hich gro" out of them! $arying from
honesty un%er the greatest %iscouragement to suici%e an% mur%er
The Iuestion! therefore! must be as&e% in a relati$e sense altogether! an% "e
must inIuire "hich of the three &in%s of natural causes of crime has a greater
or less in\uence in %etermining each #articular crime at any gi$en moment in
the in%i$i%ual an% social life
;o clear ans"er of general a##lication can be gi$en to this Iuestion! for the
relati$e in\uence of the anthro#ological! #hysical! an% social con%itions $aries
"ith the #sychological an% social characteristics of each oRence against the
la"
For instance! if "e consi%er the three great classes of crimes against the
#erson! against #ro#erty! an% against #ersonal #urity! it is e$i%ent that each
class of %etermining causes! but es#ecially the biological an% social
con%itions! ha$e a %istinctly %iRerent in\uence in e$ol$ing homici%e! theft! or
in%ecent assaults @n% so it is in e$ery category of crimes
The un%eniable in\uence of social con%itions! an% still more of economic
con%itions! in lea%ing u# to the commission of theft! is far inferior in the
genesis of homici%es an% in%ecent assaults @n% similarly! in each category of
crimes! the in\uence of the %etermining con%itions $aries greatly accor%ing
to the s#ecial forms of crime
Certain casual homici%es are #lainly the result of social con%itions Agambling!
%rin&! #ublic o#inion! ]cB in a much higher %egree than homici%es "hich for
the most #art s#ring from brutality! from the moral insensibility of in%i$i%uals!
or from their #sycho-#athological con%itions! corres#on%ing to abnormal
organic con%itions
2n li&e manner! certain in%ecent assaults! incests! ]c! are largely the
outcome of social en$ironment! "hich! con%emning a number of #ersons to
li$e in ho$els "ithout air or light! "ith a #romiscuity of sex bet"een #arents
an% chil%ren such as obtains amongst the brutes! eRaces or %ea%ens all
normal sense of mo%esty :n the other han%! there are cases of ra#e an% the
li&e "hich are mostly %ue to the biological con%ition of the in%i$i%ual! either
in manifest forms of sexual %isease or! less manifest though none the less
actual! of biological anomaly
For thefts! again! "hilst occasional sim#le thefts are largely the eRect of
social an% economical con%itions! this in\uence becomes feebler in
com#arison "ith im#ulses %ue to the #ersonal constitution! organic an%
#sychical! as! for instance! in the case of thefts "ith $iolence! an% es#ecially
of mur%er for the #ur#ose of robbery! "hich scoun%rels of the ZZs"ell-mob''
so freIuently commit in col% bloo%
The same obser$ation a##lies to the con%itions of #hysical en$ironment For
instance! if the regular increase of crimes against #ro#erty in "inter Aan%! as 2
sho"e% for the 'rst time from French statistics! in years "hen the col% is
greatestB is only an in%irect result! through the social an% economic
in\uences of tem#erature! the increase of crimes of #assion an% in%ecent
assaults %uring the months an% years "hen the tem#erature is highest is only
a %irect eRect of tem#erature! e$en for such as! by their biological con%itions!
oRer the feeblest resistance to these in\uences
3ean"hile! a last objection has been raise% against the conclusions "hich 2
ha$e maintaine% for many years #ast
2t has been sai% that! e$en if "e a%mit that for certain crimes an% criminals
the greatest in\uence must be recognise% as %ue to the #hysical an%
#sychical con%itions of the in%i$i%ual! exten%ing from slightly manifeste%
anomalies of an anthro#ological character to the most accentuate%
#athological con%ition! this %oes not exclu%e the #ossibility of a crime being
%ue to social con%itions 2n fact! it is sai% the anomalies of the in%i$i%ual are
in their turn only an eRect of a %ebasing social en$ironment! "hich con%emns
its $ictims to organic an% #sychical %egeneration
This objection is soun% enough if it be ta&en in a relati$e sense! but
groun%less if it be insiste% on absolutely
2t must be consi%ere%! in the 'rst #lace! that the %istinctions of cause an%
eRect are only relati$e! for e$ery eRect has its cause! an% $ice $ersaS so that
if "retche%ness! material an% moral! is a cause of %egeneration!
%egeneration itself! li&e biological anomaly! is a cause of "retche%ness @n%
in this sense the Iuestion "oul% be sim#ly meta#hysical! li&e the famous
.y9antine %iscussions as to "hether there "as originally an egg before a hen
or a hen before an egg
@n%! in fact! "hen it "as sai%! in regar% to criminal geogra#hy! that the
extent an% Iuality of crime in such an% such a #ro$ince! instea% of being the
eRect of biological con%itions Arace! ]cB an% #hysical con%itions Aclimate!
soil! ]cB! "ere but the eRect of social an% economic con%itions Aof rural an%
in%ustrial #ursuits! an% the li&eB! 2 "as able to ma&e a $ery sim#le re#ly For!
a#art e$en from statistical #roofs! if the social con%itions of such an% such a
#ro$ince! "hich ha$e an unIuestionable in\uence! are really the absolute an%
exclusi$e cause of crime! "e may still as& "hether these social con%itions of
the #ro$ince are not themsel$es the eRect of the ethnical Iualities of energy!
intelligence! an% so forth! in its inhabitants! an% of the more or less
fa$ourable con%itions of the climate an% the soil
.ut it may also be obser$e%! more #recisely! that e$en a#art from strongly
mar&e% an% cons#icuous #athological con%itions! "hich mean"hile assert
themsel$es amongst the biological factors of crime! there is a $ery great
number of these cases in "hich it cannot actually be sai% that the bio-
#sychical anomalies of the criminal are the eRect of a #hysically an% morally
#oisonous en$ironment
2n e$ery family in "hich there are se$eral chil%ren! "e 'n% Ain s#ite of
i%entical surroun%ings an% con%itions of a fa$ourable &in%! an% suitable
metho%s of training an% e%ucationB! in%i$i%uals "ho %iRer intellectually from
the cra%leS "e also 'n% in the %egree or in the &in% of their talent! the same
in%i$i%uals also %iRer from their cra%le in #hysical an% moral constitution
@n% though the #henomenon may only be manifest in the less numerous
cases of ty#es "hich are mar&e%ly normal or abnormal! it is none the less
true also in the more numerous cases of or%inary ty#es
2n this connection 2 may obser$e that #hysical an% social con%itions ha$e a
greater or a less in\uence in #ro#ortion as the #hysical an% #sychical
constitution of the in%i$i%ual is more or less soun% an% $igorous
The #ractical conclusion! therefore! of these general obser$ations on the
natural genesis of crime is this? E$ery crime is the result of in%i$i%ual #hysical
an% social con%itionsS an%! since these con%itions ha$e a more or less
%ominant in\uence for $arious forms of crime! the most certain an% #ro'table
mo%e of %efence "hich society can em#loy against criminality is of a t"ofol%
character! an% both mo%es ought to be em#loye% an% brought into action
simultaneously[in the 'rst #lace! the amelioration of the social con%itions!
as a natural #re$enti$e of crime! in the nature of a substitute for #unishmentS
an%! secon%ly! measures of #er#etual or tem#orary elimination of criminals!
accor%ing as the in\uence of biological con%itions in the e$olution of crime is
all but absolute! or more or less great! an% more or less curable
@s a matter of fact! "hen "e follo" the #erio%ic $ariations of crime! "ith its
measure% gro"th an% %ecrease! "e cannot fail to conclu%e that these
constant an% constantly occurring $ariations %e#en% u#on a corres#on%ing
$ariation of anthro#ological an% #hysical factors For! "hilst criminal statistics
are far from sho"ing the regularity "hich Tuetelet claime% "ith much
exaggeration! the #ro#ortional 'gures in regar% to the bearings of age! sex!
calling! ]c! u#on criminality exhibit $ery insigni'cant $ariations from year to
year @n% as for the #hysical factors! if mar&e% $ariations are ex#licable at
some gi$en #erio%! it is ne$ertheless e$i%ent that neither climate! nor the
nature of the soil! nor atmos#heric con%itions! nor the seasons! nor the
tem#erature of %iRerent years coul% ha$e un%ergone in the last half-century
such constant an% re#eate% $ariations as to corres#on% to those "a$es of
criminality "hich "e shall #resently exhibit in almost e$ery nation of Euro#e
Thus it is to the social factors that "e must chie\y attribute the #erio%ic
$ariations of criminality For e$en the $ariations "hich can be %etecte% in
certain anthro#ological factors! li&e the in\uences of age an% sex u#on crime!
an% the more or less mar&e% outbrea& of anti-social an% #athological
ten%encies! %e#en% in their turn u#on social factors! such as the #rotection
accor%e% to aban%one% infants! the #artici#ation of "omen in non-%omestic!
commercial an% in%ustrial life! #re$enti$e an% re#ressi$e measures! an% the
li&e @n% again! since the social factors ha$e s#ecial im#ort in occasional
crime! an% crime by acIuire% habit! an% since these are the most numerous
sections of crime as a "hole! it is clear that the #erio%ic mo$ement of crime
must be attribute% in the main to the social factors So true is this! that! as
"e shall #resently see! the gra$est crimes! es#ecially against #ersons!
#recisely because they mostly in%icate congenital criminality! follo" a more
stea%y an% regular mo$ement than these slighter but far more freIuent
oRences against #ro#erty! #ublic or%er! an% #ersons! of a more occasional
character! an% that! as microbes of the "orl% of crime! they are the more
%irect outcome of social en$ironment
2t is therefore another #oint in fa$our of the ex#erimental school that it has
insiste% on this sociological as#ect of the #roblem of criminality! by sho"ing
legislators! outsi%e the limits of their #uniti$e reme%ies! as easy as they are
illusory! ho" they might! as far as circumstances "ill #ermit! a##ly a genuine
social reme%y to crime
@fter these #reliminary obser$ations! it is time that "e shoul% ta&e a closer
$ie" of the general statistics of the mo$ement of crime in Euro#e! so far as
they may be follo"e% in o>cial 'gures
)hilst "e ha$e no intention of oRering a bo%y of com#arati$e statistics! but
only of gi$ing a sim#le in%ication of the #erio%ic mo$ement of crime! these
%ata! "hich %o not ren%er it easy to com#are one country "ith another!
though they are intimately relate% so far as each #articular country is
concerne%! su>ce to exhibit a fe" facts of some consi%erable im#ortance
The most cons#icuous general #henomenon in the countries here inclu%e% is
the stea%iness of the gra$est forms of crime si%e by si%e "ith the continuous
increase of slighter oRences! es#ecially in the countries "hich sho" a long
series of 'gures! such as France! Englan%! an% .elgium This #rocee%s mainly
from the #rogressi$e accumulation of oRences against s#ecial enactments!
"hich are constantly being a%%e% to the original basis of the #enal co%eS but
it is also a sym#tom of an actual transformation in the criminal acti$ity of the
century! from "hence! through the gra%ual substitution of crimes against
#ro#erty in the great to"ns for crimes against the #erson in earlier centuries!
"e ha$e a "i%er extension together "ith a lo"er %egree of intensity
@nother characteristic common to the countries un%er obser$ation is that!
"hilst the gra$er crimes against #ro#erty sho" a some"hat mar&e%
%iminution! crimes against #ersons! on the other han%! sho" more
stea%iness! either of regularity! as in France an% .elgium! or of increase! as in
Englan%! an% still more in Germany .ut this #henomenon in the case of
crimes against the #erson is in actual corres#on%ence "ith criminal acti$ity
arising from an increase of #o#ulation :n the other han%[a#art from the
transformation of crimes of $iolence into crimes of craft an% frau%! %ue to the
increase of mo$able #ro#erty[the %ecrease of oRences against #ro#erty is
no more than the manifest eRect of an arti'cial change of ju%icial #roce%ure!
summary #rocee%ings ta&ing the #lace of trial by jury
@n alternation! "hich is not in$ali%ate% by exce#tions here an% there! has
been obser$e% in the criminality of %iRerent countries! in the #erio%ic
mo$ement of crimes an% oRences against #ro#erty an% those against the
#erson! of such a &in% that years of increase in the former usually ans"er to a
%iminution in the latter! an% $ice $ersa The #rinci#al factors in the annual
increase of theft! such as scarcity an% extremes of "eather! cause a
corres#on%ing %iminution of $iolent assaults an% bo%ily harm! of homici%es
an% in%ecent assaults! an% $ice $ersa :n the other han%! oRences against
#ro#erty! "hich are $ery numerous! contribute most of all to the total of
annual crimeS so that the maximum of 1EE0 in 2taly! as "ell as in France!
.elgium an% @ustria! is es#ecially %ue to the great se$erity of the "inter of
1E10-E0! "hich in 2taly coinci%e% "ith an agricultural crisis! atteste% by the
$ery high #rice of corn )hereas from 1EE1 to 1EEJ there "ere $ery mil%
"inters! "ith more abun%ant har$ests! an% from 1EE4 a greater extreme of
col% an% a more acute economic crisis
The general ten%ency of these #erio%ic oscillations of crime in 2taly! as in
other Euro#ean countries! is ne$ertheless far more to"ar%s increase than
to"ar%s %ecrease This is also sho"n by the #ro#ortional triennial a$erages of
crimes an% oRences #lace% on recor%! an% of #ersons con%emne% to
im#risonment
2n the mo$ement of crime in each country it is necessary to %istinguish
s#ecial oscillations! more or less #rolonge%! of increase or %ecrease! from its
general an% #ermanent ten%ency The latter is %etermine% by the
fun%amental con%itions of each nation! #hysical an% social! a#art from the
#urely arti'cial section of transgressions brought into existence by ne" la"s
The s#ecial oscillations! on the other han%! are %etermine% by the annual
$ariations in this or that factor of the more numerous oRencesS that is to say!
by abun%ance or scantiness of the har$ests! by the annual $ariations of
tem#erature! by in%ustrial an% #olitical crises! an% the li&e
The obli$ion of this mar&e% %istinction! cou#le% "ith the #reju%ices of the
scienti'c schools! an% e$en of #olitical #arties! lea%s to some curious
%isagreements! an% to li$ely %iscussions on the results of criminal statistics
For on one si%e the cham#ions of the classical school #lainly see that the
#ersistent increase of crimes an% oRences amounts to a #roof of that
brea&%o"n of #enal systems! #ractical an% theoretical! "hich ha$e hitherto
been a##lie%[as "as a%mitte% by /olt9en%orR @n% on the other han%! the
increase of crimes is %enie% or a>rme% for the #ur#ose of su##orting or
attac&ing some #articular ministry For! in #arliaments more than else"here!
there is al"ays a %ee#-seate% an% $i$acious #reju%ice! a &in% of social
arti'ciality! "hich causes men to thin& that the con%ition of States! moral an%
economic! is fun%amentally %etermine% far more by the action of this or that
go$ernment than by natural factors! "hich are mainly su#erior to an% outsi%e
of go$ernments an% #oliticians
@n% this is "hy in 2taly there has been much %iscussion of late! in scienti'c
#ublications! at the sittings of the Central Commission of Qu%icial Statistics!
an% e$en in Parliament! as to "hether crime "as increasing or %ecreasing
.eltrani-Scalia an% =ombroso almost simultaneously calle% attention to the
gro"th of 2talian crime! an% they "ere succee%e% by $arious a%herents of the
#ositi$e school! such as Ferri! Garofalo! Pa$ia! Pugliese! Gui%i! .ournet!
.ar9ilai! an% -ossi! "ho #ro%uce% e$i%ence that the general ten%ency of
crime in 2taly "as to increase! an% that the %iminutions obser$e% after 1EE0
"ere mere transitory oscillationsS an% after 1EE4 they "ere justi'e% by facts
:n the other han%! o>cial returns of criminal statistics! an% a majority of the
members of the Central Commission! "hen #ursuing an inIuiry suggeste% by
myself into 2talian crime since 1E1G [for #re$iously to this %ate there are no
criminal statistics in 2taly exce#t for 1EJG an% 1E40-10[came to the
conclusion that there "as a ten%ency to"ar%s a %iminution of crime .ut their
%ecision "as forme% from an entirely #artial stan%#oint! "hich they ha% ta&en
u# in the exigency of #olemical %iscussion They com#are%! in fact! the years
just conclu%e%! 1EE1-J! "ith 1EE0! an% thus it naturally follo"e% that after a
maximum they ha% a relati$e %ecrease @n% it "as only this ingenious
com#arison "hich ga$e an a##earance of actual #roof to their o#timistic
assertionsS for "hen a fe$er is at forty %egrees! the fall of e$en half a %egree
is $ery im#ortant They #ai% s#ecial attention to the so-calle% high
criminality! "hich is trie% by the @ssi9e courts! an% is actually %ecreasing!
though by the #urely arti'cial eRect of more an% more eRecti$e measures of
correction .ut 2 ha$e al"ays maintaine%! an% 2 ha$e the su##ort of 3
:ettingen! that "e cannot se#arate crimes an% oRences trie% by the @ssi9es
from those trie% by the Tribunals! for there is only a %iRerence of %egree
bet"een them! as is clear in regar% to theft! assaults an% "oun%ing! forgery
an% the li&e
2t is a curious fact that similar illusions ha$e existe% in all countries through
the same causes an% #reju%ices "hich ha$e been mentione% abo$e 2n
France! for instance! "e often 'n% that the &ee#ers of the seals! re#orting on
$olumes of the excellent an% $aluable series of criminal statistics since the
year 1ED4! occasionally remar& on these oscillatory %iminutions! an% ma&e a
#oint of treating them as signs of a constant an% general ten%ency! "hich
succee%ing years ha$e al"ays contra%icte%
2n France also! the same contro$ersy has been &e#t u# since 1E70! "ith the
same #olemical arti'ces as "ere em#loye% more recently in 2taly! on the
Iuestion "hether crime has increase% or %ecrease% *ufau! .eranger! .err9at
%e St Prix! an% =egoyt a>rme% that it ha% %iminishe% since 1ED4! against the
true o#inion of %e 3et9! *u#in! Chassan! 3esuar%! an% Fayet! the last of
"hom Iuotes the others in one of his essays on criminal statistics! no"
un%eser$e%ly forgotten! though they aboun% in stri&ing an% #rofoun%
obser$ation
.ut! as for France in those %ays! so for 2taly to-%ay! the statistics of
succee%ing years Iuic&ly #ro$e% that "hat o>cial o#timism an% national self-
com#lacency s#o&e of as #essimism on our #art "as but a conscientious
inference from lamentable facts! establishe% in e$ery country by the
in\uence of ci$ilisation on crime! "hich 2 ha$e %escribe% in #rece%ing #ages
@fter these general statements "e ought logically to "atch the #erio%ic
mo$ement of each lea%ing category of crimes an% oRences in each %i$ision of
the countryS for not all crimes! nor all %istricts! #ursue the same course from
year to year .ut as this inIuiry is im#ossible in the #resent "or&! "e may
#ass on to the general 'gures for other Euro#ean countries
F-@; 1ED4-E 1E0J-1
Police Contra$entions a a a 100 G01c
:Rences a a a a a a 100 G01c
Crimes against the #erson a a 100 0Ecin 41 years
'' #ro#erty a a a 100 71c
.E=G2<3 1EJ0-D 1EEG-J Trie% by the Correctional Tribunals! for crimes
against the #erson 100 100cin G4 years '' #ro#erty a 100 14Dc 1E70-D 1EEG-
J Trie% by the Tribunals for ZZ:Rences'' 100 D40c Trie% at @ssi9es! crimes
against the #erson 100 4Jcin 74 years '' '' #ro#erty 100 D1c
E;G=@;* 1EJ1-0 1EE7-4 Trie% summarily! for oRences a 100 114 in G0
years 1EGJ-1 1EE7-4 Criminal cases! against the #erson 100 17Gc '' against
#ro#erty! an% for cin JJ years circulation of false money a 100 JJc
2-E=@;* 1E47-4 1EE4-E
Trie% summarily a a a 100 0Jc
Crimes against the #erson a 100 J1cin DJ years
'' #ro#erty! an% false money 100 JDc
P-<SS2@ 1EJ7-4 1E14-E
Contra$entions an% ZZ$ols %e bois'' 100 lGDcin DJ years
Crimes an% oRences a a 100 1G7c
GE-3@;P 1EED-7 1EEJ-1
Crimes an% oRences against #ublic or%er 100 110c
'' '' the #erson 100 114cin 4 years
'' '' #ro#erty 100 0Jc
@<ST-2@ 1E41-0 1EE7-4 Prisoners con%emne% for crimes [ 100 1DDcin D0
years '' '' oRences a 100 70Jc
SP@2; 1EEG-7 1EE4-1 Trie% for crimes an% oRences [ 100 _N`Gcin J years
'' contra$entions aa 100 11Gc
The most constant general fact sho"n by these %ata is in all cases the $ery
remar&able increase of slighter %elinIuencies! si%e by si%e "ith constancy or
slight %iminution in crimes against the #erson! an% a large %iminution in
crime against #ro#erty This is seen in France! Englan%! .elgium! "hilst there
is an increase both of crimes an% oRences in @ustria
.ehin% the general fact! ho"e$er! "e must %istinguish bet"een the actual
an% the a##arent
:n the one han%! the %ecrease of more serious crime against #ro#erty is
sim#ly %ue to #risoners electing to be sentence% by the inferior court! "hich
is at the %iscretion of the Tribunals in France! but legally establishe% in
.elgium! by the la"s of 1EGE an% 1E7E! an% in Englan% by the @cts of 1EJ4
an% 1E1E[an election of the slighter but more certain #unishment of the
magistrates in #reference to going before a jury 2n%ee%! crimes against the
#erson! in "hich there is less #o"er of election! %o not exhibit so mar&e% a
%ecreaseS an% accor%ingly "e see that in .elgium the increase of
ZZcorrectionalise%'' crimes is %ue far more to crimes against #ro#erty A4D #er
cent in G4 yearsB than to those against the #erson A0 #er centB
:n the other han%! the gro"th of slighter %elinIuency is #artly the eRect of
s#ecial enactments! "hich are constantly creating ne" infractions! oRences
or contra$entions For France may be mentione% the la" of 1EGD on elu%ing
su#er$ision! that of 1E77 on the game la"s! that of 1EJ1 on the false
%escri#tion of goo%s for sale! of 1E7J on rail"ay oRences! of 1E70 on the
ex#ulsion of refugees! of 1E1G on %run&enness! an% of 1E17 on reIuisition of
horses 2 %ealt "ith the statistical results of these la"s! an% "ith the in\uence
of the increasing number of #olice agents! in my ZZStu%ies on Criminality in
France'' A-ome! 1EE1BS an% 2 "ill here a%% only a single obser$ation 2f it is
true! as 3 Qoly says! that other la"s! #asse% since 1ED4! ha$e extinguishe% a
fe" oRences! or at least ha$e %iminishe% their freIuency un%er less se$ere
regulations! yet it is also true that the ne" infractions create% in the #ast half-
century sho" far higher numbers than those of the infractions "hich ha$e
been extinguishe% or ren%ere% less easy So that amongst the D01 #er cent
of increase on the oRences trie% in France bet"een 1ED4 an% 1EE1! the
element %ue to legal creation of ne" infractions must not be ignore%
2t cannot! ho"e$er! be %enie% that for certain more freIuent oRences "e
ha$e a real an% $ery note"orthy increase! a#art from any legislati$e or
statistical cause of %isturbance
The same obser$ation may be ma%e in regar% to Englan% There also the
increase of 14 #er cent! %uring thirty years of oRences trie% summarily is %ue
in #art to ne" infractions! create% by s#ecial legislation! an% es#ecially by the
E%ucation @ct of 1E1G! un%er "hich there "ere more than forty thousan%
infractions in 1E1E! an% more than sixty-'$e thousan% in 1EE4
2n regar% to this %elinIuency in Englan% A"herein are inclu%e%! o$er an%
abo$e real oRences! certain infractions corres#on%ing to the #olice
contra$entions of the 2talian! French! .elgian an% @ustrian co%esB it is to be
obser$e% that the increase of 14 #er cent in thirty years is %ue rather to
contra$entions than to oRences @n% this "oul% establish a remar&able
%iRerence bet"een the $ariations of %elinIuency in Englan% an% in France
2f "e analyse the recor% of infractions trie% summarily in Englan%! "e 'n%
that contra$entions of the la" in res#ect of %run&enness account for most of
this increase Afrom ED!104 in 1E41 to 1EG!DD1 in 1EEJ an% 14J!1G0 in 1EE4B
:n the other han%! oRences against the #erson AassaultsB an% against
#ro#erty Astealing! larceny! malicious oRencesB ha$e not sho"n so large an
increase
2n fact! if "e com#are the $ariations in assaults an% thefts in
France an% Englan%! "e ha$e the follo"ing 'gures?[
E;G=@;* 1E41-G 1E10-E1 Prisoners trie% summarily for assaults a a 100
10D *itto for stealing! larceny! an% malicious oRences a a a a a a a 100
110
F-@;CE
Cases trie% by the Tribunals?
For assault an% "oun%ing a a a a a 100 1G7
For sim#le theft a a a a a a a 100 114
So that in Englan% not only the total %elinIuency! but more es#ecially the
commoner oRences against the #erson an% against #ro#erty sho" a slighter
increase than that "hich has been establishe% for the same #erio% in France
)hilst "e %o not o$erloo& the greater increase of crimes against the #erson
in Englan% Acoinci%ing! of course! "ith the %oubling of the #o#ulation in 'fty-
'$e yearsB! this fact seems to me to #ro$e the salutary in\uence of English
organisations against certain social factors "hich lea% u# to %elinIuency
Asuch as the care of foun%lings! the guar%ianshi# of the #oor! an% so forthB!
not"ithstan%ing the great %e$elo#ment of economic acti$ity! "hich is
assure%ly in no "ay inferior to that of France The 'gures strengthen my
conclusions as to the social factors of crime! an% refute the o#timistic theory
of Poletti
.ut the actual #artici#ation of each country in the general increase of crime
in Euro#e is %etermine% by other causes! outsi%e of the arti'cial in\uences of
%iRerent co%es of la" @n% the most general an% constant of these causes! in
all the $arious #hysical an% social en$ironments! is the annual increase of
#o#ulation! "hich! by a%%ing to the %ensity of the inhabitants of each
country! multi#lies their material an% legal relations to one another! an%!
conseIuently! the objecti$e an% subjecti$e constituents of crime
Ta&ing the o>cial 2talian 'gures! "hich are also relie% on by 3 =e$asseur! "e
'n%! for the #erio%s corres#on%ing to the $ariations of criminality! the
follo"ing rates of increase in the #o#ulation of the %iRerent countries 2relan%
sho"s a %ecrease! o"ing to emigration
2ncrease
2taly DD!107!1E0 in 1E4G[G0!071!G04 in 1EE0 70 #er cent
'' D1!14J!JJG in 1E1G[G0!J4J!1EE in 1EEE 1D ''
France G1!EJE!0G1 in 1ED4[GE!D1E!00G in 1EE1 D0 #er cent
.elgium 7!01D!410 in 1E70[ J!JEG!D1E in 1EEJ 77 ''
Prussia D1!074!0E7 in 1EJD[D4!417!7DE in 1E1E D4 ''
Germany 7J!111!000 in 1EED[71!J70!000 in 1EE1 7 ''
Englan% 1G!E04!101 in 1EG1[D1!E10!JE4 in 1EE4 101 ''
'' D0!044!DD7 in 1E41[D1!E10!JE4 in 1EE4 G0 ''
@ustria D0!D11!JG1 in 1E40[DG!010!4EE in 1EE4 17 ''
2relan% J!10E!041 in 1E41[ 7!111!J7J in 1EEE %ecrease 11 ''
2t must! ho"e$er! be obser$e%! "ith regar% to this increase of the #o#ulation!
'rstly that it tells as a factor of criminality only in so far as it is not
neutralise%! "holly or in #art! by other in\uences! mainly social! "hich
#re$ent crime or ren%er it less gra$e Secon%ly! it is not right merely to
com#are the #ro#ortional rates of increase in the #o#ulation "ith those of
crime! as "as %one for instance by 3 .o%io! "ho sai% that in 2taly! from 1E1G
to 1EEG! ZZsince the #o#ulation ha% increase% by 1J #er cent! crime might
ha$e increase% %uring the same time by 1J #er cent! "ithout its being fair
to say that it ha% actually increase%'' 2n #oint of fact! as 3 -ossi remar&e%!
since in 2taly! an% almost all the Euro#ean States! the gro"th of the
#o#ulation is %ue to the excess of births o$er %eaths Afor emigration is more
numerous than immigrationB! it is e$i%ent that! "hen "e con'ne our attention
to short #erio%s! the a%%ition to the #o#ulation! consisting of chil%ren un%er
ten or t"el$e years! %oes not increase crime in an a##reciable %egree The
%eaths! on the other han%! must be subtracte% from all stages of human life!
but es#ecially from the number of those "ho can an% %o commit crimes an%
oRences
;o"! as "e cannot in this #lace go into %etail! 2 must con'ne myself to the
statement of a fe" characteristic facts! as illustrate% by Euro#ean crime
Thus "e #ercei$e the in\uence of the great famine of 1E74-1 on crimes
against #ro#erty in France an% .elgiumS the ra#i% oscillations of crime in
2relan%! in%icating the unstable #olitical an% social con%itions of the countryS
an% the #arallel mo$ements of crime in! France an% Prussia )e see! in%ee%!
a constant %iminution of crime for the #erio% bet"een 1E40 an% 1E10!
follo"e% Aafter the statistical %isturbance of the terrible year 1E10-1B by a
#erio% of serious an% continue% increase of crime! resulting from social an%
economic con%itions! as sho"n es#ecially by the increase of $agrancy an%
theft since 1E1J
@ll these general facts go to #ro$e the close an% intimate connection
bet"een crime an% the aggregate of its $arious constituents So that! "ithout
#ursuing more %etaile% inIuiries into certain social factors of crime! "hich are
ca#able of statistical enumeration! such as the increase in the number of the
#olice! the abun%ance or scarcity of corn an% "ine! the s#rea% of
%run&enness! family circumstances! increase of #ersonal #ossessions! the
facility or other"ise of the settlement of %is#utes! commercial an% in%ustrial
crises! the rate of "ages! the $ariation from year to year of the general
con%itions of existence! an% so forth! coinci%ent "ith the %e$elo#ment of
e%ucation! encouragements to thrift an% the organisation of charity! "e must
no" #rocee% to %ra" from these statistical %ata the most im#ortant
conclusions of criminal sociology
2
Criminal statistics sho" that crime increases in the aggregate! "ith more or
less notable oscillations from year to year! rising or falling in successi$e
"a$es Thus it is e$i%ent that the le$el of criminality in any one year is
%etermine% by the %iRerent con%itions of the #hysical an% social
en$ironment! combine% "ith the here%itary ten%encies an% occasional
im#ulses of the in%i$i%ual! in obe%ience to a la" "hich 2 ha$e calle%! in
analogy "ith chemical #henomena! the la" of criminal saturation
Qust as in a gi$en $olume of "ater! at a gi$en tem#erature! "e 'n% a solution
of a 'xe% Iuantity of any chemical substance! not an atom more or less! so in
a gi$en social en$ironment! in certain %e'ne% #hysical con%itions of the
in%i$i%ual! "e 'n% the commission of a 'xe% number of crimes
:ur ignorance of many #hysical an% #sychical la"s an% of innumerable
con%itions of fact! "ill #re$ent us from obtaining a #recise $ie" of this le$el of
criminality .ut none the less is it the necessary an% ine$itable result of a
gi$en #hysical an% social en$ironment Statistics sho" us! in%ee%! that the
$ariations of this en$ironment are al"ays atten%e% by conseIuential an%
#ro#ortional $ariations of crime 2n France! for instance Aan% the obser$ation
"ill be foun% to a##ly to e$ery country "hich #ossesses an exten%e% series of
criminal statisticsB! the number of crimes against the #erson $aries but little
in sixty-t"o years The same thing hol%s goo% for Englan% an% .elgium!
because their s#ecial en$ironment is also less $ariable! by reason that
here%itary %is#ositions an% human #assions cannot $ary #rofoun%ly or
freIuently! exce#t un%er the in\uence of exce#tional %isturbances of the
"eather! or of social con%itions 2n fact! the more serious $ariations in res#ect
of crimes against the #erson in France ha$e ta&en #lace either %uring #olitical
re$olutions! or in years of excessi$e heat! or of exce#tional abun%ance of
meat! grain! an% "ine This is illustrate% by the exce#tional increase of crime
from 1E70 to 1EJD 3inor oRences against the #erson! on the contrary! "hich
are more occasional! assaults an% "oun%ing! for exam#le! $ary in the main!
as to their annual oscillations! "ith the abun%ance of the "ine har$est! "hilst
in their oscillations from month to month they %is#lay a characteristic
increase %uring the $intage #erio%s! from Qune to *ecember! not"ithstan%ing
the constant %iminution of other oRences an% crimes against the #erson
:n the other han%! crimes against #ro#erty! an% still more oRences against
#ro#erty! sho" "i%e oscillations on account of the $ariability of the s#ecial
en$ironment! "hich is almost al"ays in a con%ition of unstable eIuilibrium! as
in #erio%s of scarcity! an% of commercial! 'nancial an% in%ustrial crises! an%
so forth! "hilst they are subject also to the in\uence of the #hysical
en$ironment Crimes an% oRences against #ro#erty %is#lay extraor%inary
increases in the se$erest "inter seasons! an% %iminutions in mil%er "inters
@n% this corres#on%ence bet"een the more general! #o"erful! an% $ariable
#hysical an% social factors of crime! as "ell as its more characteristic
manifestations such as thefts! "oun%ing! an% in%ecent assaults! is so
constant an% so %irect that! "hen 2 "as stu%ying the annual mo$ement of
criminality in France! an% #ercei$e% some extraor%inary oscillation in the
crimes an% oRences! 2 foresa" that in the annals of the year 2 shoul% 'n%
mention of an agricultural or #olitical crisis! or an exce#tional "inter or
summer in the recor%s of the "eather So that "ith a single column of a table
of criminal statistics 2 "as able to reconstruct the historical con%ition of a
country in its more salient features 2n this "ay #sychological ex#eriment
again con'rme% the truth of the la" of criminal saturation
;ot only so! but it may be a%%e% that as! in chemistry! o$er an% abo$e the
normal saturation "e 'n% that an increase% tem#erature of the liIui%
en$elo#es an exce#tional su#er-saturation! so in criminal sociology! in
a%%ition to the or%inary saturation "e are sometimes a"are of an excess of
criminal saturation! %ue to the exce#tional con%itions of the social
en$ironment
2n%ee% it is to be obser$e% not only that the main an% ty#ical criminality has
a sort of re\ex criminality %e#en%ing u#on it! but also that an increase of
more serious or more freIuent crimes in%uces a cro# of resistance to an%
assaults u#on the guar%ians of #ublic or%er! together "ith false "itness!
insults! a$oi%ance of su#er$ision! abscon%ing! an% the li&e Certain crimes
an% oRences also ha$e their com#lementary oRences! "hich from being
conseIuences become in their turn the causes of ne" oRences Thus
concealment an% #urchase of stolen goo%s increase simultaneously "ith
theftS homici%e an% "oun%ing lea% to the illegal carrying of armsS a%ultery
an% abusi$e language to %uels! an% so forth
.eyon% this there are sun%ry &in%s of excessi$e criminal saturations "hich
are exce#tional! an% therefore transitory 2relan% an% -ussia #resent us "ith
cons#icuous exam#les in their #olitical an% social crimesS an% similarly
@merica! %uring election contests So in France before an% after *ecember D
1EJ1! the harbouring of criminals! "hich in no other Iua%rennial #erio% from
1ED4 to 1EE1 excee%s a recor% of 'fty! rises in 1EJ0-JG as high as DG0 So
%uring the famine of 1E71! theft of grain rises in France to forty-t"o in a
single year! "hilst for half a century it barely reaches a total of se$enty-'$e
2t is notorious! again! that in years of %ear #ro$isions! or se$ere "inters! a
large number of thefts an% #etty oRences are committe% for the sole object
of securing maintenance "ithin the #rison "alls @n% in this connection 2 ha$e
obser$e% in France that other oRences against #ro#erty %ecrease %uring a
famine! by an analogous #sychological moti$e! thus #resenting a sort of
statistical #ara%ox Thus! for exam#le! 2 ha$e foun% that as oi%ium an%
#hylloxera are more eRecti$e than se$ere #unishments in %iminishing the
number of assaults an% cases of unla"ful "oun%ing! so famine succee%s
better than the strongest bars! or %ogs &e#t loose in the #rison yar%s! in
#re$enting the esca#e of #risoners! "ho at such times are %etaine% by the
a%$antage of being su##orte% at the #ublic ex#ense
For a #arallel reason in 1E71! a famine year! "hilst all crimes an% oRences
against #ro#erty increase% in an extraor%inary fashion! only the crimes of
theft an% breach of con'%ence by househol% ser$ants sho"e% a characteristic
%ecrease! because such #ersons "ere %eterre% by the fear of being %ismisse%
by their em#loyers %uring the time of %istress The 'gures are as follo"s?[
F-@;CE A@ssi9esB 1E77 1E7J 1E74 1E71
Crimes against #ro#erty a G!141 G!G04 G!JE1 7!DGJ
.reach of con'%ence by
househol% ser$ants a a 1G4 1DE 14E 107
Thefts by the same a a 1!001 E17 0D7 E04
3 Chaussinan% a%%s! by "ay of con'rmation of my statement that %uring
economic crises! such as famine an% high #rices of grain! the number of
cases of esca#e from justice also %ecreases! F:- ZZthie$es an% tram#s #refer
arrest! in or%er to esca#e from the misery "hich adicts them outsi%e the
#rison "alls''
T"o fun%amental conclusions of criminal sociology may be %ra"n from this
la" of criminal saturation
The 'rst is that it is incorrect to assert a mechanical regularity of crime!
"hich from Tuetelet's time has been much exaggerate% There has been a
too literal insistance on his famous %eclaration that ZZthe bu%get of crime is
an annual taxation #ai% "ith more #reciseness than any other''S an% that it is
#ossible to calculate beforehan% ho" many homici%es! #oisoners! an% forgers
"e shall ha$e! because ZZcrimes are generate% e$ery year in the same
number! "ith the same #unishments! in the same #ro#ortions'' @n% one
constantly meets "ith this echo of the statisticians! that ZZfrom year to year
crimes against the #erson $ary at the most by one in t"enty-'$e! an% those
against #ro#erty by one in 'fty''S or! again! that there is ZZa la" of limitation
in crime! "hich %oes not $ary by more than one in ten''
This o#inion! originate% by Tuetelet an% other statisticians after an inIuiry
con'ne% to the more serious crimes! an% to a $ery short succession of years!
has alrea%y been refute%! in #art by 3aury an% -henisch! an% more #lainly by
@ber%are! 3ayr! 3esse%aglia an% 3in9loR
2n fact! if the le$el of criminality is of necessity %etermine% by the #hysical
an% social en$ironment! ho" coul% it remain constant in s#ite of the continual
$ariations! sometimes $ery consi%erable! of this same en$ironmentO That
"hich %oes remain 'xe% is the #ro#ortion bet"een a gi$en en$ironment an%
the number of crimes? an% this is #recisely the la" of criminal saturation .ut
the statistics of criminality "ill ne$er be constant to one rule from year to
year There "ill be a %ynamical but not a statical regularity
Thus the element of 'xity in criminal sociology consists in asserting! not the
fatality or #re%estination of human actions! inclu%ing crimes! but only their
necessary %e#en%ence u#on their natural causes! an% there"ith the
#ossibility of mo%ifying eRects by mo%ifying the acti$ity of these causes @n%!
in%ee%! e$en Tuetelet himself recognise% this "hen he sai%! ZZ2f "e change
the social or%er "e shall see an imme%iate change in the facts "hich ha$e
been so constantly re#ro%uce% Statisticians "ill then ha$e to consi%er
"hether the changes ha$e been useful or injurious These stu%ies therefore
sho" ho" im#ortant is the mission of the legislator! an% ho" res#onsible he
is in his o"n s#here for all the #henomena of the social or%er''
The secon% conseIuence of the la" of criminal saturation! one of great
theoretical im#ortance! is that the #enalties hitherto regar%e%! sa$e for a fe"
#latonic %eclarations! as the best reme%ies for crime! are less eRectual than
they are su##ose% to be For crimes an% oRences increase an% %iminish by a
combination of other causes! "hich are far from being i%entical "ith the
#unishments lightly "ritten out by legislators an% a"ar%e% by ju%ges
/istory aRor%s us $arious im#ressi$e exam#les
The -oman Em#ire! "hen society ha% fallen into extreme corru#tion! recalling
many sym#toms of our o"n e#och! $ainly #romulgate% la"s "hich $isite%
celibacy! a%ultery! an% incest[ZZ$enus #ro%igiosa''["ith ZZthe $engeance of
the s"or% an% #unishments of the utmost se$erity'' *io Cassius AZZ/ist
-om!'' lxx$i 14B says that in the city of -ome alone! after the la" of
Se#timus Se$erus! there "ere three thousan% charges of a%ultery .ut the
stringent la"s against these crimes continue% to the %ays of Qustinian! "hich
sho"s that the crimes ha% not been chec&e%S an%! as Gibbon says AZZ*ecline
an% Fall!'' ch 77B! the Scatinian la" against ZZ$enus nefan%a'' ha% fallen into
abeyance through la#se of time an% the multitu%e of oRen%ers Pet "e see in
our o"n %ays! as in France! that there are some "ho "oul% o##ose celibacy
"ith no other reme%y than a la" #asse% for the #ur#ose
Since me%iae$al times the increasing gentleness of manners has cause% a
%iminution of crimes of bloo%! once so numerous that there "as nee% of
sun%ry ZZtruces'' an% ZZ#eaces!'' not"ithstan%ing the harsh #enalties of
#re$ious centuries @n% *u .oys calle% Cettes sim#le because! after gi$ing a
table of shoc&ing #unishments in the Germany of his %ay Athe 'fteenth
centuryB! he mar$elle% that all these #ains an% torments ha% not #re$ente%
the increase of crimes
2m#erial -ome %elu%e% herself "ith the i%ea that she coul% stam# out
Christianity "ith #unishments an% tortures! "hich! ho"e$er! only seeme% to
fan the \ame 2n the same "ay Catholic Euro#e ho#e% to extinguish
Protestantism by means of $in%icti$e #ersecution! an% only #ro%uce% the
o##osite eRect! as al"ays ha##ens 2f the -eforme% faith %oes not stri&e root
in 2taly! France! an% S#ain! that must be ex#laine% by #sychological reasons
#ro#er to those nations! in%e#en%ently of the sta&e an% of massacres! for it
%i% not stri&e root e$en "hen religious belief "as liberate% from its fetters
This %oes not #re$ent all go$ernments in e$ery lan% from continuing to
belie$e that! in or%er to arrest the s#rea% of certain #olitical or social
%octrines! there is nothing better than to #ass exce#tional #enal la"s!
forgetting that! "ith i%eas an% #reju%ices just as "ith steam! com#ression
increases the ex#ansi$e force
Po#ular e%ucation has s"e#t a"ay the so-calle% crimes of magic an%
"itchcraft! though they ha% "ithstoo% the most sa$age #unishments of
antiIuity an% me%iae$al times
.las#hemy! in s#ite of the slitting of the nose! tongue! an% li#s! enacte% by
the #enal la"s! an% continue% in France from =ouis N2 to =ouis N,! "as $ery
common in the mi%%le ages! being Ali&e "itchcraft! trances! an% self-
immurementB a #athological or abnormal manifestation of religious emotion!
"hich in those times ha% an extraor%inary %e$elo#ment @n% the habit of
blas#hemy %iminishe% un%er the #sychological an% social e$olution of our
o"n %ays! #recisely "hen it cease% to be #unishe% :r! rather! it continue% to
this %ay! as in Tuscany! "here the Tuscan #enal co%e A@rt 1G4B! "hich
sur$i$e% until *ecember G1! 1EE0! still #unishe% it "ith '$e years'
im#risonment The illusion as to the e>cacy of #unishment is so %ee#ly
roote% that a #ro#osal "as ma%e in the Senate! in 1E1J! to inclu%e this
#enalty in the ne" 2talian #enal co%e @n% at 3urcia! in S#ain! trials for
blas#hemy ha$e lately been re-establishe%
3ittermaier obser$e% that! if in Englan% an% Scotlan% there "ere far fe"er
cases of false "itness! #erjury! an% resistance to authority than in 2relan% an%
on the Continent! this must be %ue in great measure to national character!
"hich is one of the here%itary elements of normal as "ell as of abnormal an%
criminal life
Thus e$en a#art from statistics "e can satisfy oursel$es that crimes an%
#unishments belong to t"o %iRerent s#heresS but "hen statistics su##ort the
teaching of history! no %oubt can remain as to the $ery slight A2 ha% almost
sai% the absence of anyB %eterrent eRect of #unishments u#on crime
)e may in%ee% %eri$e a telling #roof from statistical recor%s! by referring to
the #rogress of re#ression in France! o$er a #erio% of sixty years! as 2 ha$e
alrea%y %one in my ZZStu%ies'' #re$iously Iuote%
)hen "e s#ea& of the re#ression of crime! "e must 'rst of all %istinguish
bet"een that "hich is %ue to the general character of #enal legislation! more
or less se$ere! an% that "hich is secure% by the a%ministration by the ju%ges
of the la" as it is ;o"! so far as legislation is concerne%! the gro"th of crime
in France certainly cannot be attribute% to the relaxation of #unishment The
legislati$e reforms "hich ha$e ta&en #lace! es#ecially in 1EGD an% 1E4G! on
the general re$ision of the #enal co%e! mo%i'e% #unishments to some extent!
but "ith the %e'nite #ur#ose an% result! as sho"n by the same o>cial
recor%s of criminal statistics! of strengthening the re#ressi$e #o"er of the la"
by #ro$i%ing for the a##lication of less aggra$ate% #unishments The
re#ugnance of juries an% ju%ges against excessi$e #unishments! an% their
#reference for acIuittal! is! in%ee%! a #sychological la" 3oreo$er! it is "ell
&no"n that if there is in Euro#e a #enal co%e less mil% than any of the rest! it
is that of France! "hich is the ol%est of those no" in force! an% still retains
much of the military rigour of its origin @n% it must be a%%e% that for certain
crimes! as for ra#es an% in%ecent assaults! "hich are ne$ertheless constantly
increasing in France! the #unishments ha$e been increase% by se$eral
successi$e enactments The same is true of extortion by threats of ex#osure!
"hich occurs more an% more freIuently! as 3 Qoly also obser$es! in s#ite of
the se$ere #unishments of the la" of 1E4G
The Iuestion! therefore! is re%uce% to ju%icial re#ression! the #rogress
"hereof must be obser$e% in the #ast half-century! for it has e$i%ently the
greatest in\uence u#on crime =a"s! in fact! ha$e no real o#eration if they
are not a##lie% more or less rigorouslyS for in the social strata "hich
contribute most to criminality the la"s are &no"n only by their #ractical
a##lication! "hich is also the only truly %efensi$e function! carrying "ith it a
s#ecial #re$enti$e of the re#etition of the crime by the #erson con%emne%
Thus the arguments of jurists an% legislators ha$e not much $alue for the
criminal sociologist "hen they are base% solely on the #sychological illusion
that the %angerous classes trouble themsel$es about the sha#ing of a #enal
co%e! as the more instructe% an% less numerous classes might "ell %o The
%angerous classes atten% to the sentences of the ju%ges! an% still more to the
execution of those sentences! than to the articles of a co%e 2n this
connection 2 cannot agree "ith the forecast of Garofalo as to the #erilous
eRect of the abolition of ca#ital #unishment in 2taly on the imagination of the
#eo#leS for he "as "ell a"are that! though it is %e'ne% in $arious articles of
the ol% co%e! an% in about sixty sentences e$ery year! the #unishment of
%eath has not been carrie% out! "hich is the essential #oint! for the last
'fteen years
The elements "hich %etermine the greater or less se$erity of ju%icial
re#ression are of t"o &in%s?[
1 The ratio of #ersons acIuitte% to the total number of #risoners #ut on their
trial
D The ratio of the se$erest #unishments to the total number of #risoners
con%emne%
Certainly the #ro#ortion of acIuittals ought not to in%icate a %iRerence in the
se$erity of re#ression as such! for con%emnation or acIuittal ought to #oint
merely to the certainty or other"ise of guilt! the su>ciency or insu>ciency of
the e$i%ence .ut! as a matter of fact! the #ro#ortional increase of con$ictions
%oes #artly re#resent greater se$erity on the #art of the ju%ges! an% still
more of the juries! "ho %is#lay it by attaching "eight to some"hat
uncon$incing e$i%ence! or in too rea%ily a%mitting circumstances "hich ten%
to aggra$ate the oRence This is con'rme% also by the rarity of acIuittals in
cases of contumacy
:f these t"o factors the former is certainly the more im#ortant! for it is a
#sychological la" that man! in regar% to #unishment as to any other &in% of
suRering! is more aRecte% by the certainty than by the gra$ity of the
in\iction @n% it is to the cre%it of criminal theorists of the classical school
that they ha$e stea%ily maintaine% that a mil% yet certain #unishment is
more eRectual than one "hich! being se$ere in itself! hol%s out a stronger
ho#e of esca#ing it ;e$ertheless it is a fact that they ha$e carrie% the theory
too far! by see&ing to obtain excessi$e mitigations an% abbre$iations of
#unishment! "ithout exerting themsel$es to secure certainty by reforms of
#roce%ure an% #olice a%ministration
The %iminution of the rate of acIuittal is e$i%ent an% continuous! both at the
@ssi9es an% in the Tribunals! exce#t for the last Iua%rennial #erio% This may
of course in%icate a more careful management of the trials by the ju%gesS but
it certainly sho"s an un%oubte% ten%ency to"ar%s increase% ju%icial se$erity!
"hich! mean"hile! has not arreste% the gro"th of crime
PE-CE;T@GE :F @CT<2TT@=S 2; F-@;CE Trie% in @ssi9e Courts Tribunals
Total 1ED4-G0 a a G0 a a G1 a a GD 1EG1-J a a 7D a a DE a a G0
1EG4-70 a a GJ a a DD a a DG 1E71-J a a GD a a 1E a a 10 1E74-J0 a
a G4 a a 14 a a 11 1EJ1-J a a DE a a 1D a a 1G 1EJ4-40 a a D7 a a
10 a a 1 1E41-J a a D7 a a 0 a a 4 1E44-0 a a DG a a 11 a a E 1E1D-
4 a a D0 a a 4 a a 4 1E11-E1 a a DG a a J a a 4 1EED-4 a a D1 a a
4 a a 4
PE-CE;T@GE :F @CT<2TT@=S 2; E;G=@;* Criminal Procee%ings Summary
Procee%ings 1EJE-4D a a a DJ a a a G7 1E4G-1 a a a D7 a a a G1
1E4E-1D a a a D4 a a a D7 1E1G-1 a a a DJ a a a D1 1E1E-ED a a a
D7 a a a D1 1EEG-1 a a a DD a a a D0
/ere also it a##ears that the gro"th of crime in Englan%! though less than in
France! is not %ue to the "ea&ening of ju%icial se$erity through the greater
number of acIuittals The number has! in fact! constantly %iminishe%!
es#ecially in summary #rocee%ings! "hich is just "here the greatest increase
of crime is manifest
Passing no" to the other factor of ju%icial re#ression! that is to the
#ercentage of #ersons sentence% to gra$er &in%s of #unishment! "e ha$e to
ta&e into account! amongst assi9e cases in France! the #risoners sentence% to
%eath! #enal ser$itu%e! an% solitary im#risonment! exclu%ing such as are
sentence% to correctional #unishment Asim#le im#risonment an% 'nesB as
"ell as young #risoners sent to reformatoriesS an% in regar% to the Tribunals!
"e must ta&e the #ercentages of those "ho are con%emne% to im#risonment!
"hich is the most serious #unishment! the remain%er being 'ne%! or han%e%
o$er to their #arents! or sent to reformatories
Con%emne% at @ssi9es Con%emne%
F-@;CE [[[[[[[[[[[[[[ by Tribunals
To %eath To #enal ser$itu%e to im#risonment
1ED4-G0 a a DJ a a JE a a a 41
1EG1-J a a 1J a a 7D a a a 4J
1EG4-70 a a 1 a a G1 a a a 4J
1E71-J a a 1 a a 70 a a a 41
1E7J-J0 a a 1 a a G0 a a a 4D
1EJ1-J a a 11 a a 7E a a a 41
1EJ4-40 a a 1 a a 70 a a a 41
1E41-J a a 4 a a 7E a a a 47
1E44-0 a a J a a 71 a a a 4E
1E1D-4 a a 1 a a 70 a a a 44
1E11-E1 a a 1 a a J0 a a a 44
1EED-4 a a 1 a a 70 a a a 4J
These 'gures! if they %o not sho" Aas might ha$e been foreseenB so large an
increase of se$erity as in the #ercentages of acIuittals! yet #ro$e that
re#ression has not %iminishe% e$en in the serious character of the
#unishments :n the other han%! "e can see that! in the assi9e cases!
exclu%ing the 'rst #erio%! before the re$ision of 1EGD! "hilst ca#ital
#unishment sho"s a certain %iminution Aes#ecially %ue to the la"s of 1EGD!
1E7E! ]c! "hich re%uce% the number of cases in$ol$ing the %eath #enaltyB!
though continuing at a certain le$el since 1E41! sentences of #enal ser$itu%e
an% solitary con'nement sho" a continue% increase from the secon% #erio%!
an% es#ecially since 1EJ1
So also at the Tribunals! exce#t for a fe" oscillations! as in the ninth #erio%!
there is a sustaine% increase of re#ression
@n% the fact that this increase% ratio of the more serious #unishments
actually in%icates a greater se$erity on the #art of the ju%ges can only be
conteste% on the groun% of a simultaneous increase of the more serious
crimes an% oRences :n the other han%! "e note in France a general
%ecrease of crimes against the #erson Aexce#t for assaults on chil%renB! an%
still more of crimes against #ro#erty
There is also a stri&ing con'rmation in the corres#on%ing acIuittals an%
con%emnations of a more serious character )e see! in fact! that the more
serious con%emnations increase #recisely "hen the acIuittals %ecrease Aas in
the 7th! 4th! 1th! an% 10th #erio%s at the @ssi9es! an% the Dn%! Jth! an% Eth
#erio%s at the TribunalsBS "hilst in the years of more freIuent acIuittals there
is also a %iminution of more serious #unishments! as in the Jth an% Eth
#erio%s at the @ssi9es That is to say! the t"o sets of statistics actually
in%icate a greater or less se$erity on the #art of juries an% ju%ges
This 'rmer re#ression is %emonstrate% in s#ite of the continue% increase of
attenuating circumstances! "hich rose at the @ssi9es from J0 #er cent in
1EGG to 1G #er cent in 1E04! an% at the Tribunals from J7 #er cent in 1EJ1
to 4J #er cent in 1EE4 ;e$ertheless it is a fact that the number of cases
trie% by %efault at the @ssi9es has continuously %ecrease% from a yearly
a$erage of 471 in 1ED4-G0 to one of D44 in 1EED-4
For 2taly "e ha$e the follo"ing 'gures? _column missing hea%O` P-ET:-S
T-2.<;@=S @SS2^ES [[[[[[[[[[[[[[[[[[[[[ Con%emne%
to 2m#risonment Con%emne% Penal Ser$itu%e Slighter im#risonment to
%eath for life tem#orary #unishts 1E17 D1 10 1D J4 4J DE J DD E0 1G 4J
4G D0 4 DG E1 1G 41 44 D1 1 D7 ED 1J 1D 44 DJ E DJ EJ 1 14 41 DJ 0 DJ [
1D 4G 41 DJ 1EE0 D4 [ 1G JJ 4E DJ 1 D7 E1 11 41 4J D1 D DG E1 1J 4 44
D1 G DG E1 11 J7 47 D0 7 DG E1 1G JG 47 G0 J DG E1 14 J7 4G G0 4 D1 E1
14 J1 4D G0 1 D1 EG 11 JE 4G G0 E D1 ED 1D 71 4J D0
Thus! once more! there has been no relaxation of re#ression! exce#t in late
years for those con%emne% by the Pretors to #enal ser$itu%e for life
The conclusion! therefore! is still the same! namely that ju%icial re#ression! in
France an% 2taly! has gro"n stronger an% stronger! "hilst criminality has
increase% more an% more
2n this fact! again! "hich confutes the common o#inion that the so$ereign
reme%y of crime is the greater rigour of #unishment! "e may fairly 'n% a
#ositi$e #roof that the #enal! legislati$e! an% a%ministrati$e systems hitherto
a%o#te% ha$e misse% their aim! "hich can be nothing else than the %efence
of society against criminals
/enceforth "e must see&! through the stu%y of facts! a better %irection for
#enal legislation as a function of society! so that! by the obser$ation of
#sychological an% sociological la"s! it may ten%! not to a $iolent an% al"ays
tar%y reaction against crime alrea%y e$ol$e%! but to the elimination or
%i$ersion of its natural factors
This fun%amental conclusion of criminal statistics is so im#ortant that "e
must con'rm it by a%%ing to the statistical %ata the general la"s of biology
an% sociology This is the more necessary because my #osition as 'rst state%
has met "ith some criticism
2n the 'rst #lace! it is easily seen! "hen "e com#are the total result of crime
"ith the $arie% character of its anthro#ological! #hysical! an% social factors!
that #unishment can exert but a slight in\uence u#on it Punishment! in fact!
by its s#ecial eRect as a legal %eterrent! acting as a #sychological moti$e! "ill
clearly be unable to neutralise the constant an% here%itary action of climate!
customs! increase of #o#ulation! agricultural #ro%uction! economic an%
#olitical crises! "hich statistics in$ariably exhibit as the most #otent factors
of the gro"th or %iminution of criminality
2t is a natural la" that forces cannot con\ict or neutralise each other unless
they are of the same &in% The fall of a bo%y cannot be retar%e%! change% in
%irection or accelerate%! sa$e by a force homogeneous "ith that of gra$ity
So #unishment! as a #sychological moti$e! can only o##ose the #sychological
factors of crime! an% in%ee% only the occasional an% mo%erately energetic
factorsS for it is e$i%ent that it cannot! as a #reliminary to its a##lication!
eliminate the organic here%itary factors "hich are re$eale% to us by criminal
anthro#ology
Punishment! "hich has #rofesse% to be such a sim#le an% #o"erful reme%y
against all the factors of crime! is therefore a #anacea "hose #otency is far
beneath its re#utation
)e must bear in min% a fact "hich is familiar enough! though it has been too
often forgotten by legislators an% criminalists Society is not a homogeneous
aggregate! but on the contrary an organism! li&e e$ery animal organism!
com#ose% of tissues of $arying structure an% sensibility E$ery society! in
fact! "ith its #rogressi$e an% increasingly %istincti$e nee%s an% occu#ations!
is a #ro%uct of the union of social classes "hich %iRer greatly in their organic
an% #sychical characteristics The #hysical constitution! the habits!
sentiments! i%eas! an% ten%encies of one social stratum are far from being
the same as those of other strata /ere again "e ha$e! as S#encer "oul% say!
the la" of e$olution through a %e#arture from the homogeneous to the
heterogeneous! from the sim#le to the com#lex! or! in the "or%s of @r%igo! a
natural formation by successi$e %istinctions @mongst sa$age tribes this
%istinction of the social strata %oes not exist! or it is far less mar&e% than in
barbarian societies! an% still less than in ci$ilise% societies
E$ery schoolmaster "ith a bent for #sychological obser$ation se#arates his
#u#ils into three classes There is the class of in%ustrious #u#ils of goo%
%is#osition! "ho "or& of their o"n accor%! "ithout calling for strict %isci#lineS
that of the ignorant an% i%le A%egenerate an% of "ea& ner$ous forceB from
"hom neither mil%ness nor se$erity can obtain anything "orth ha$ingS an%
that of the #u#ils "ho are neither "holly in%ustrious nor "holly i%le! an% for
"hom a %isci#line base% on #sychological la"s may be genuinely useful
This is the case "ith large bo%ies of sol%iers or of #risoners! for all
associations of men! an% for society as a "hole These #artial organisms! %ue
to the constant relationshi#s of a life more or less in common! are in this
res#ect re#ro%uctions of society as a "hole! just as a fragment of crystal
re#ro%uces the characteristics of the unbro&en crystal51G8
51G8 There is! ho"e$er! some %iRerence bet"een the manifestation of the
acti$ity of a grou# of men an% that of the aggregate society .et"een
#sychology "hich stu%ies the in%i$i%ual! an% sociology "hich stu%ies the
society! 2 thin& there is room for a collecti$e #sychology! to stu%y more or less
%e'ne% grou#s The #henomena of these grou#s are analogous! but not
i%entical "ith those of the sociological bo%y #ro#erly so calle%! accor%ing as
the union is more or less %e'nite Collecti$e #sychology has its 'el% of
obser$ation in all unions! ho"e$er occasional! such as the #ublic street! the
mar&ets! "or&sho#s! theatres meetings! assemblies! colleges! schools!
barrac&s! #risons! an% so forth 3any #ractical a##lications of the %ata of
collecti$e #sychology might be gi$en @n exam#le "ill be foun% in a future
cha#ter! "hen 2 come to consi%er the #sychology of the jury
2n the same "ay! from the stan%#oint of criminal sociology! "e may %i$i%e
the social strata into three analogous categories[the highest! "hich commits
no crimes! organically u#right! restraine% only by the authority of the moral
sense! of religious sentiments an% #ublic o#inion! together "ith the
here%itary transmission of moral habits This class! for "hich no #enal co%e
"oul% be necessary! is unfortunately $ery smallS an% it is far smaller if! in
a%%ition to legal an% a##arent criminality! "e also ta&e into account that
social an% latent criminality through "hich many men! "ho are u#right so far
as the #enal co%e is concerne%! are not u#right by the stan%ar% of morality
@nother class! the lo"est! is ma%e u# of in%i$i%uals o##ose% to all sense of
u#rightness! "ho! being "ithout e%ucation! #er#etually %ragge% bac& by their
material an% moral %estitution into the #rimiti$e forms of the brute struggle
for existence! inherit from their #arents an% transmit to their chil%ren an
abnormal organisation! a%%ing %egeneration an% %isease! an ata$istic return
to sa$age humanity This is the nursery of the born criminals! for "hom
#unishments! so far as they are legal %eterrents! are useless! because they
encounter no moral sense "hich coul% %istinguish #unishment by la" from
the ris& "hich also atten%s u#on e$ery honest in%ustry
=astly "e ha$e the other class of in%i$i%uals "ho are not born to crime! but
are not 'rmly u#right! alternating bet"een $ice an% $irtue! "ith im#erfect
moral sense! e%ucation an% training! for "hom #unishment may be genuinely
useful as a #sychological moti$e 2t is just this class "hich yiel%s the large
contingent of occasional criminals! for "hom #unishments are e>cacious if
they are %irecte% in their execution by the axioms of scienti'c #sychology!
an% es#ecially if they are ai%e% by the social #re$ention "hich re%uces the
number of o##ortunities of committing crimes an% oRences
:nce again 2 must ex#ress my agreement "ith 3 Garofalo! "ho! in %ealing
"ith this subject! insists on the necessity of %istinguishing bet"een the
%iRerent classes of criminals before %eci%ing as to the e>cacy of
#unishments
Pet this conclusion as to the $ery limite% e>ciency of #unishments! "hich is
force% u#on us by facts! an% "hich! as .entham sai%! is con'rme% by the
a##lication of each #uniti$e act! #recisely because its #re$ious a##lication %i%
not succee% in #re$enting crime! is %irectly o##ose% to general #ublic
o#inion! an% e$en to the o#inion of jurists an% legislators
:n the ince#tion or the gro"th of a criminal manifestation! legislators! jurists!
an% #ublic thin& only of the reme%ies! "hich are as easy as they are illusory!
of the #enal co%e! or of some ne" @ct of re#ression E$en if this "ere useful!
"hich is $ery #roblematical! it has the ine$itable %isa%$antage of ma&ing
men ignore other reme%ies! far more #ro'table! albeit more %i>cult! of a
#re$enti$e an% social &in% @n% this ten%ency is so common that many of
those "ho ha$e %"elt u#on or acce#te% the #ositi$e mo$ement of the ne"
school! not long after they ha% a%mitte% that 2 "as in the right! %eclare%
im#ulsi$ely that ZZthe constant commission of crime arises from the lac& of
timely re#ression!'' an% that ZZone of the chief causes of the gro"th of crime
in 2taly is the mil%ness of our #unishments'' :r else they forgot to as&
themsel$es the elementary Iuestion of criminal sociology! "hether an% ho"
far #unishments ha$e a genuinely %efensi$e force This is just "hat ha##ens
"ith #e%agogues "ho enter u#on long %iscussions on the $arious metho%s
an% means of e%ucation! "ithout as&ing themsel$es beforehan% "hether an%
ho" far e%ucation has the actual #o"er of mo%ifying the tem#erament an%
character "hich here%ity stam#s u#on e$ery in%i$i%ual
These conclusions ta&e us far beyon% the limit of #enal se$erity! an% at the
same time they su>ce to combat the objection commonly raise% against
those "ho thin&! li&e oursel$es! that re#ressi$e justice ought to concern itself
not "ith the #unishment of #ast crime! but "ith the #re$ention of future
crime For "hilst the a%$ocates of se$erity! an% those "hom 2 "ill call the
ZZlaxati$ists!'' $irtually thin& Aa#art from a fe" #latonic statementsB only of
#unishments as reme%ies of oRences! "e on the other han% belie$e that
#unishments are merely secon%ary instruments of social self-%efence! an%
reme%ies ought to be a%a#te% to the actual factors of the oRence @n% since
the social factors are most ca#able of mo%i'cation! so "e say "ith Prins that
ZZfor social e$ils "e reIuire social cures''
3 Tar%e! then! "as not Iuite accurate in his remar& that my con$iction as to
the $ery slight e>cacy of #unishments is a mere conseIuence of my i%eas on
the anthro#ological an% #hysical character of crime! an% that! ZZon the
contrary! the #re#on%erating im#ortance "hich he has assigne% to the social
causes logically %ebars him from acce#ting this conclusion'' @s a matter of
fact! #unishment regar%e% as a #sychological moti$e so far as it is a legal
%eterrent! an% as a #hysical moti$e so far as it im#lies the con'nement of the
#erson con%emne%! "oul% more naturally belong! in abstract logic! to the
biological an% #hysical theory of crime )hereas it is #recisely because 2
recognise the in\uence of social en$ironment! in a%%ition! that ex#erimental
logic con$inces me that #unishment is not an e>cacious reme%y of crime!
unless forces are a##lie% beforehan% to neutralise! or at any rate to
counteract! the social factors of crime
@n% if this is not a ne" conclusion! as one of our critics obser$es by "ay of
re#roach[as though it "ere not one of the characteristics of truth to re#eat
itself #ersistently! ho"e$er much it may be forgotten or e$en o##ose%["e
must ne$ertheless remar& that it is no" re#eate% "ith a mass of ne"
obser$ations an% %e'nite a##lications! "hich gi$e it a force un&no"n to mere
logical %e%uctions
The classical school has concerne% itself sim#ly "ith mitigation of
#unishment as com#are% "ith me%iae$al excessS an% for this reason!
because e$ery age has its o"n mission! it coul% not also concern itself "ith
the #re$ention of crimes! "hich is far more useful an% e>cacious @ fe"
isolate% thin&ers! it is true! "rote a fe" bol% an% far-reaching #ages on
#re$enti$e metho%s in o##osition to the numerous $olumes on #unishmentS
but their "or%s ha% no eRect u#on criminalists an% legislators! because
science ha% not yet un%erta&en the #ositi$e an% metho%ical obser$ation of
the natural factors of crime
2 "ill con'ne myself to a fe" exam#les! in or%er to sho" that amongst
#ractical men! as amongst #ublic o>cials an% legislators! the illusion that
#unishments are the true #anacea of crime is al"ays #re%ominant
Practical men %eclare that ZZthe #rohibiti$e #enal la" ought to be regar%e%
as the 'rst an% most im#ortant of #re$enti$e la"s'' The #refets in their
circulars! being concerne% about the increase of crime! #ut for"ar% the most
$igilant an% se$ere re#ression as a so$ereign reme%y @ counsellor of the
French Cour %e Cassation "rites that ZZin a "orthy system of social #olice
there is no better guarantee for or%er an% safety than intimi%ation'' The
Uee#er of the Seals! in his re#ort on French #enal statistics for 1E14! s#ea&ing
of the continue% increase of in%ecent assaults! comes to the conclusion that
ZZin any case! only 'rm an% energetic re#ression can a$ail against a
lamentable increase of crimes against morality'' @n% more recently another
Uee#er of the Seals en%e% his re#ort on the statistics of 1ED4 to 1EE0 by
obser$ing that ZZthe gro"th of crime can only be o##ose% by an incessantly
$igorous re#ression'' 3 Tar%e agree% "ith this conclusion! saying that ZZif
crimes are only! as has been sai%! rail"ay acci%ents of a society tra$elling at
full s#ee%! it must not be forgotten that! the faster the train! the stronger
must be the bra&e an% it is certain that such a state of aRairs %eman%s an
increase or a ne" %e#arture of re#ression an% #unishment''
2t may be a%mitte% that our conclusion is not a no$eltyS but! as Stuart 3ill
sai%! there are t"o "ays of eRecting useful inno$ations! to %isco$er "hat "as
not &no"n before! or else to re#eat "ith ne" %emonstrations the truths "hich
ha% been forgotten
@n% this illusion as to the in\uence of #unishments is so "i%es#rea% that it is
"ell to inIuire into its historic an% #sychological argumentsS for! as S#encer
says! in or%er to %eci%e as to the $alue of an i%ea! it is useful to examine its
genealogy
)e may #ass by the foun%ation of #rimiti$e $engeance! "hich from the age
of #ri$ate combats #asse% into the s#irit an% form of the earliest #enal la"s!
an% still subsists as a more or less unconscious an% enfeeble% resi%uum in
mo%ern society )e may also #ass by the here%itary eRect of the tra%itions of
me%iae$al se$erity! "hich excite an instincti$e sym#athy for stern
#unishment in connection "ith e$ery crime
.ut one of the main reasons of this ten%ency is an error of #sychological
#ers#ecti$e! "hereby men ha$e forgotten the #rofoun% %iRerences of the
i%eas! habits! an% sentiments of the $arious social strata! concerning "hich 2
ha$e s#o&en abo$e Through this forgetfulness the honest an% instructe%
classes confoun% their o"n i%ea of the #enal la"! an% the im#ression it
ma&es u#on them! "ith the i%ea an% the im#ression of the social classes from
"hich the majority of criminals are recruite% This has been remar&e% u#on
by .eccaria! Carmignani! an% /olt9en%orR amongst the classical criminalists!
an% by =ombroso an% others of the ne" school "ho ha$e stu%ie% the slang
an% literature of criminals! "hich are their #sychological mirror @gain! it is
forgotten that for the higher classes! a#art from their #hysical an% moral
re#ugnance against crime! "hich is the most #o"erful re#elling force! there is
the fear of #ublic o#inion! almost un&no"n amongst the classes "hich ha$e
sto##e% short at a lo"er stage of human e$olution
For the higher classes one exam#le may su>ce 2t is the fact obser$e% u#on
by 3r S#encer! that gambling %ebts an% Stoc& Exchange bargains are
scru#ulously %ischarge%! though for them there is neither #enal obligation nor
e$i%ence in "riting @n% it may be a%%e% that im#risonment for %ebt ne$er
#romote% the ful'lment of contracts! nor has its abolition %iscourage% it
@s for the lo"er classes! one $isit to a #rison su>ces There! if you as& a
#risoner "hy the #unishment %i% not %eter him from the crime! you generally
get no ans"er! because he has ne$er thought about it :r else he re#lies! as 2
ha$e often foun%! that ZZif you "ere afrai% of hurting yourself "hen you "ent
to "or&! you "oul% gi$e u# "or&ing'' These in%ee% are "hat one "oul%
ex#ect to be the feelings #re$ailing amongst the lo"er social strata! to "hom
honest sentiments an% i%eas! "hich for us are tra%itional an% organic! come
$ery late[just as 3r Stanley obser$e% that the #eo#le in Central @frica are
only no" beginning to em#loy stone guns! "hich in #ast ages "ere use% in
Euro#e
@nother fallacy "hich hel#s to strengthen con'%ence in #unishments is that
the eRect of exce#tional an% summary la"s is treate% on the same basis as
that of the or%inary co%es! slo" an% uncertain in their #roce%ure! "hich sa#s
all their force by the chance of immunity! an% the inter$al bet"een the
unla"ful act an% its legal conseIuence
=ombroso an% Tar%e! in%ee%! ha$e confronte% me "ith historic exam#les of
$igorous an% e$en sa$age re#ressions! "hereby it "as #ossible to stam# out
some e#i%emic crime .ut these exam#les are not conclusi$e! for 2 ha$e
sho"n that! as soon as these exce#tional re#ressions "ere at an en%! as! for
instance! after the %eath of Po#e Sixtus ,! brigan%age an% other crimes "ere
#ersistently rene"e% .ut my main rejoin%er is this! that these exce#tional
re#ressions %e#en% u#on the jus belliS an% therefore cannot enter into the
or%inary an% constant metho%s of #enal a%ministration This may not ha$e
the eRect of an extraor%inary re#ression! secure% by a some"hat
unscru#ulous #rom#titu%e! "hich stri&es innocent an% guilty ali&eS an% thus it
is im#ossible to treat as eIual! or e$en to com#are! the in\uence of metho%s
"hich are essentially %iRerent
@nother false com#arison is %ra"n bet"een the eRecti$e force of $arious
#unishments! an% their #otentiality is confoun%e%! "hereas it is necessary to
%istinguish the #unishment of the "ritten co%e from that of the ju%ge! an%
still more from that carrie% into execution 2n fact it is only natural that
#unishment shoul% more or less terrify the criminal "ho has been ju%ge% an%
is about to be con%emne%S but this in no "ay #ro$es its e>cacy! "hich
shoul% ha$e been %is#laye% by the menace of the la" in guar%ing the
#risoner against the crime E$en "ith the %eath #enalty! there are many
instances of con%emne% #ersons "ho! through congenital insensibility!
submit to it cynically 3oreo$er! for such as ha$e been o$er"helme% "ith
terror "hen the moment of execution arri$e%! the utmost that this fact can
#ro$e is that they are so constitute% as to gi$e themsel$es u# com#letely to
the im#ression of the moment! "ithout the energy to resist it 2n other "or%s!
so long as the #unishment is %istant an% uncertain! they "ere not terri'e%!
but ha$ing al"ays yiel%e% to the im#ression of the moment! they yiel%e% to
the criminal im#ulse
For other #unishments! also! it is &no"n that #uniti$e metho%s! e$en "hen
not contrary to the la"! as they sometimes are in 2taly! are al"ays less stern
than sim#le fol& imagine "hen they rea% the co%es an% the sentences @n%
criminals naturally ju%ge of #unishments by their o"n ex#erience! that is to
say! in accor%ance "ith their #ractical a##lication! an% not "ith the more or
less can%i% threats of the la"ma&er
2f "e a%% to $in%icti$e feeling! historic tra%itions! obli$ion of bio-#sychic
%iRerences of the social strata! the confoun%ing of exce#tional la"s an%
or%inary #unishments! an% of the $arying eRecti$e force of #unishment! the
attitu%e of the #ublic min% an% the natural ten%ency of criminalists to thin&
only of their t"o syllogistic symbols of crime an% #unishment[if "e further
a%% the easy-going i%ea of the multitu%e! that the inscribing of a la" in the
statute-boo& is a su>cient reme%y for social %iseases! "e can rea%ily
un%erstan% ho" this exaggerate% an% illusory con'%ence in #unishment is so
#ersistent! an% cro#s u# in e$ery theoretical or #ractical %iscussion! in s#ite
of the strong refutation "hich is %aily aRor%e% by facts an% #sychological
obser$ation
@ll human actions! li&e the actions of animals! are %e$elo#e% bet"een the t"o
o##osite #oles of #leasure an% #ain! by the attraction of the former an% the
re#ulsion of the latter @n% #unishment! "hich is one of the social forms of
#ain! is al"ays a %irect moti$e in human con%uct! as it is also an in%irect
gui%e! by $irtue of its being a sanction of justice! unconsciously strengthening
res#ect for the la" .ut still this #sychological truth! "hilst it %emonstrates
the natural character of #unishment! an% the conseIuent absur%ity of
abolishing it as absolutely $oi% of e>cacy! %oes not %estroy our conclusion as
to the slight e>cacy of #unishment as a counteraction of crime
)e ha$e only to %istinguish bet"een #unishment as a natural sanction an%
#unishment as a social sanction in or%er to see ho" the really great #o"er of
natural #unishment almost entirely %isa##ears in social #unishment! "hich in
all our systems is but a sorry caricature
The mute but inexorable reaction of nature against e$ery action "hich
infringes her la"s! an% the grie$ous conseIuences "hich ine$itably follo" for
the man "ho has infringe% them! constitute a re#ression of the most
e>cacious &in%! "herein e$ery man! es#ecially in the earlier years of his life!
recei$es %aily an% ne$er to be forgotten lessons This is the %isci#line of
natural conseIuence! "hich is a genuine e%ucational metho%! long since
#ointe% out by -ousseau! an% %e$elo#e% by S#encer an% .ain
.ut in this natural an% s#ontaneous form! the #unishment %eri$es its "hole
force from the ine$itable character of the conseIuences @n% it is one of the
fe" obser$ations of #ractical #sychology "hich ha$e been ma%e an%
re#eate% by the classical stu%ents of crime! that in #unishment! an%
es#ecially the #unishment of %eath! the certainty is more eRectual than the
se$erity @n% 2 "ill a%% that e$en a small uncertainty ta&es a"ay from a #ain
"hich "e fear! much of its re#elling force! "hereas e$en a great uncertainty
%oes not %estroy the attraction of a #leasure "hich "e are ho#ing for
/ere! then! "e ha$e a #rimary an% #otent cause of the slight e>cacy of legal
#unishments! in the #icturing of the many chances of esca#e First there is
the chance of not being %etecte%! "hich is the most #o"erful s#ring of all
contem#late% crime? then the chance! in case of %etection! that the e$i%ence
"ill not be strong enough! that the ju%ges "ill be merciful! or "ill be
%ecei$e%! that ju%gment may be a$erte% ami%st the intricacies of the trial!
that clemency may either re$erse or mitigate the sentence These are so
many #sychological causes "hich! con\icting "ith the natural fear of
un#leasant conseIuences! "ea&en the re#ellent force of legal #unishment!
"hilst they are un&no"n to natural #unishment
There is also another #sychological con%ition "hich! un%ermining e$en the
force of natural #unishment! almost entirely %estroys the #o"er of social
#unishmentS an% that is im#ro$i%ence )e see! in fact! that e$en the most
certain natural conseIuences are %e'e%! an% lose most of their #o"er to
guar% an im#ro$i%ent man from anti-natural an% %angerous actions ;o" in
regar% to legal #unishment! e$en a#art from #assionate im#ulse! it is &no"n
that criminals! occasional an% other! are s#ecially im#ro$i%ent! in common
"ith sa$ages an% chil%ren This "ea&ness is cons#icuous enough in the lo"er
an% less instructe% classes! but amongst criminals it is a genuine
characteristic of #sychological in'rmity
;o"! "hilst a $ery slight force is su>cient to #ro%uce $ery great an% constant
eRects! "hen it acts in harmony "ith natural ten%ency an% en$ironment!
e$ery #rocess! on the other han%! "hich is o##ose% to the natural ten%encies
of man! or "hich %oes not follo" them closely! encounters a resistance "hich
trium#hs in the last resort
E$ery%ay life gi$es us many exam#les The uni$ersity stu%ent! "hen he
gambles! ris&s on a single car% the last remnant of his allo"ance! an%
#re#ares for himself a thousan% #ri$ations 3iners an% "or&men at
%angerous tra%es refuse to ta&e "arning by the sight of comra%es "hom they
ha$e seen %ying or re#eate%ly attac&e% by %isease 3 *es#ine relate% that!
%uring the cholera of 1E44! at .ilbao! there "ere some "ho set u# an
imitation of the %isease in or%er to obtain charitable relief! though in se$eral
cases %eath ensue% 3 Fayet! in an essay on the statistics of accuse%
#ersons in France! exten%ing o$er t"enty years! remar&e% that s#eci'c an%
#ro#ortionately greater criminality "as %is#laye% by notaries an% bailiRs! "ho
&ne" better than any one else the #unishments 'xe% by la" @n% in the
statistics of ca#ital #unishment at Ferrara! %uring nine centuries! 2 %isco$ere%
the signi'cant fact that there is a succession of notaries execute% for forgery!
freIuently at $ery short inter$als! in the same to"n This attests the truth of
the obser$ation ma%e by 3ontesIuieu an% .eccaria! as against the %eterrent
#o"er of the %eath #enalty! for men gro" accustome% to the sightS an% this
again is con'rme% by the fact mentione% by 3r -oberts! a gaol cha#lain! an%
3 .erenger! a magistrate! that se$eral con%emne% men ha% #re$iously been
#resent at executions! an% by another fact mentione% by *es#ine an%
@ngelucci! that in the same to"n! an% often in the same #lace! in "hich
executions ha% been carrie% out! mur%ers are often committe% on the same
%ay
@ man %oes not change his i%entityS an% no #enal co%e! "hether mil% or
se$ere! can change his natural an% in$incible ten%encies! such as inclination
to #leasure an% #ersistent ho#e of im#unity
=et us also obser$e that! as 3ill sai%! the #ermanent e>cacy of any measure
in the s#heres of #olitics! economy! an% a%ministration! is al"ays in$ersely
#ro#ortional to its force an% su%%enness ;o" #unishment %oes not stan% the
test e$en of this sociological la"! for in its essence it is only the #rimiti$e
reaction of force against force 2t is true that! as .eccaria sai%! the classical
school has al"ays aime% at ren%ering social reaction against crime less
$iolentS but that is not enough /encefor"ar%! if "e are to a%a#t oursel$es to
#sychological an% sociological la"s! the %e$elo#ment of our %efensi$e
a%ministration must ten% to ren%er this social reaction less %irect 2f the
struggle for existence is al"ays to remain the su#reme la" of li$ing
creatures! yet it is not necessary that it shoul% al"ays be %e$elo#e% in the
$iolent forms of #rimiti$e humanity :n the contrary! one of the results of
social #rogress is to ma&e the struggle for existence less $iolent an% less
%irect
2n the same "ay! the continuous struggle bet"een society an% criminals!
instea% of being a #hysical an% social force! %irectly o##ose% to a #hysical
in%i$i%ual force! shoul% rather become an in%irect system of #sychical forces
Penal la" in society has the same Iualities as e%ucation in the family an%
#e%agogy in schools @ll the three "ere once %ominate% by the i%ea of
taming human #assions by forceS the ro% "as su#reme 2n course of time it
"as #ercei$e% that this #ro%uce% unex#ecte% results! such as $iolence an%
hy#ocrisy! an% then men thought 't to mo%ify their #unishments .ut in our
o"n %ays schoolmasters see the a%$antage of relying solely on the free #lay
of ten%encies an% bio- #sychological la"s Similarly the %efensi$e function of
society! as -omagnosi sai%! in #lace of being a #hysical an% re#ressi$e
system! ought to be a moral an% #re$enti$e system! base% on the natural
la"s of biology! #sychology! an% sociology
Force is al"ays a ba% reme%y for force 2n the 3i%%le @ges! "hen
#unishments "ere brutal! crimes "ere eIually sa$ageS an% society! in
%emoralising ri$alry "ith the atrocity of criminals! laboure% in a $icious circle
;o"! in the lo"er social gra%es! the brutal man! "ho often resorts to
$iolence! is in his turn freIuently the $ictim of $iolenceS so that! amongst
criminals! a scar is some"hat of a #rofessional %istinction
To sum u#! our %octrine as to the e>cacy of #unishments %oes not consist! as
some critics too s#aring of their arguments ha$e maintaine%! in an absolute
negation! but rather an% es#ecially in objecting to the tra%itional #reju%ice
that #unishments are the best an% most eRectual reme%ies of crime
)hat "e say is this Punishment by itself! as a means of re#ression!
#ossesses a negati$e rather than a #ositi$e $alueS not only because it has not
the same in\uence on all anthro#ological ty#es of criminals! but also because
its use is rather to #reclu%e the serious mischief "hich "oul% result from
im#unity than to con$ert! as some imagine that it can! an anti-social into a
social being .ut im#unity "oul% lea% to a %emoralisation of the #o#ular
conscience in regar% to crimes an% oRences! to an increase of the #rofoun%
lac& of foresight in criminals! an% to the remo$al of the #resent im#e%iment
to fresh crimes %uring the term of incarceration
2t is the same "ith e%ucation! the mo%ifying #o"er of "hich is commonly
exaggerate% E%ucation! though it has an en%uring in\uence on chil%ren! an%
is therefore more eRectual than #unishment! is far more ser$iceable in
eliminating anti-social ten%encies! "hereof "e all #ossess the germs! than in
any su##ose% creation of social ten%encies an% forces "hich "ere not #resent
from birth
Thus! "hilst the conseIuences of im#unity an% lac& of e%ucation are serious
an% mischie$ous! still this %oes not #ro$e con$ersely that #unishment an%
e%ucation ha$e in reality so #ositi$e an in\uence as is commonly attribute%
to them
2t is #recisely on the groun% of this negati$e! yet real e>cacy of #unishments!
es#ecially "hilst they are being carrie% out! that! "hilst "e a##reciate the
mitigation of #uniti$e %isci#line "hich has been achie$e% by the classical
school! "e belie$e! on the other han%! that their abbre$iation of the term of
#unishments is altogether mista&en an% %angerous )e a%mit that
#unishment ought not to be an arbitrary an% inhuman torture! an% for this
reason "e ha$e no sym#athy "ith the system of solitary con'nement! no" so
much in fashion "ith the classical jurists an% #rison authorities! #recisely
because it is inhuman! as "ell as un"ise an% nee%lessly ex#ensi$e
2t is a #sychological absur%ity an% a social %anger! "hich ne$ertheless
un%erlies the ne" 2talian #enal co%e! that #unishment ought to consist more
an% more in a short isolation of the #risoner For! setting asi%e the "ell-&no"n
results of short #unishments! such as corru#tion an% reci%i$ism! it is e$i%ent
that in this "ay #unishment is %e#ri$e% of its main element of negati$e
e>ciency against crime! as "ell as of its eRect in #re$enting crime %uring the
incarceration of the criminal
22
Since #unishments! instea% of being the sim#le #anacea of crime "hich
#o#ular o#inion! encourage% by the o#inions of classical "riters on crime an%
of legislators! imagine them! are $ery limite% in their %eterrent in\uence! it is
natural that the criminal sociologist shoul% loo& for other means of social
%efence in the actual stu%y of crimes an% of their natural origin
)e are taught by the e$ery%ay ex#erience of the family! the school!
associations of men an% "omen! an% the history of social life! that in or%er to
lessen the %anger of outbrea&s of #assion it is more useful to ta&e them in
their origin! an% in \an&! than to meet them "hen they ha$e gathere% force
.entham relates that in Englan% the %elays cause% by har%-%rin&ing couriers!
"ho use% to be hea$ily 'ne% "ithout any goo% result! "ere ob$iate% by
combining #assenger tra>c "ith the #ostal ser$ice Em#loyers of labour
secure in%ustry an% the most #ro%ucti$e "or& far more easily by oRering a
share of the realise% #ro'ts than by a system of 'nes 2n the German
uni$ersities! aca%emic jealousies an% intolerance ha$e been in great measure
o$ercome by #aying the #rofessors in #ro#ortion to the number of their
#u#ils! so that the Faculties 'n% it to their interest to engage an% encourage
the best #rofessors! in or%er to attract as many stu%ents as #ossible Thus
the acti$ity an% 9eal of #rofessors! magistrates! an% o>cials "oul% be
stimulate% if their remuneration %e#en%e% not only on the automatic test of
seniority! but also on the #rogress %is#laye% by #ublications! sentences not
re$erse%! settlements not cancelle%! an% the li&e 2t is better to regulate the
%isturbing restlessness of chil%ren by timely %i$ersions rather than by
attem#ting to re#ress them in a manner injurious to their #hysical an% moral
health So in lunatic asylums an% #risons! "or& is a better means of or%er an%
%isci#line than chains an% castigation 2n brief! "e obtain more from men by
consulting their self-res#ect an% interests than by threats an% restraint
2f the counteraction of #unishment must ine$itably be o##ose% to criminal
acti$ity! still it is more con%uci$e to social or%er to #re$ent or %iminish this
acti$ity by means of an in%irect an% more eRecti$e force
2n the economic s#here! it has been obser$e% that "hen a sta#le #ro%uct
fails! recourse is ha% to less esteeme% substitutes! in or%er to su##ly the
natural "ants of man&in% So in the criminal s#here! as "e are con$ince% by
ex#erience that #unishments are almost %e$oi% of %eterrent eRect! "e must
ha$e recourse to the best a$ailable substitutes for the #ur#ose of social
%efence
These metho%s of in%irect %efence 2 ha$e calle% #enal substitutes .ut
"hereas the foo% substitutes are as a rule only secon%ary #ro%ucts! brought
into tem#orary use! #enal substitutes shoul% become the main instruments of
the function of social %efence! for "hich #unishments "ill come to be
secon%ary means! albeit #ermanent For in this connection "e must not
forget the la" of criminal saturation! "hich in e$ery social en$ironment
ma&es a minimum of crime ine$itable! on account of the natural factors
inse#arable from in%i$i%ual an% social im#erfection Punishments in one form
or another "ill al"ays be! for this minimum! the ultimate though not $ery
#ro'table reme%y against outbrea&s of criminal acti$ity
These #enal substitutes! "hen they ha$e once been establishe% in the
conscience an% metho%s of legislators! through the teaching of criminal
sociology! "ill be the recognise% form of treatment for the social factors of
crime @n% they "ill also be more #ossible an% #ractical than that uni$ersal
social metamor#hosis! %irect an% uncom#romising! insiste% on by generous
but im#atient reformers! "ho scorn these substitutes as #alliati$es because
humanitarian enthusiasm causes them to forget that social organisms! li&e
animal organisms! can be only #artially an% gra%ually transforme%
The i%ea of these #enal substitutes amounts! in short! to this The legislator!
obser$ing the origins! con%itions! an% eRects of in%i$i%ual an% collecti$e
acti$ity! comes to recognise their #sychological an% sociological la"s!
"hereby he "ill be able to obtain a mastery o$er many of the factors of
crime! an% es#ecially o$er the social factors! an% thus secure an in%irect but
more certain in\uence o$er the %e$elo#ment of crime That is to say! in all
legislati$e! #olitical! economic! a%ministrati$e! an% #enal arrangements! from
the greatest institutions to the smallest %etails! the social organism "ill be so
a%juste% that human acti$ity! instea% of being continually an% un#ro'tably
menace% "ith re#ression! "ill be insensibly %irecte% into non-criminal
channels! lea$ing free sco#e for energy an% the satisfaction of in%i$i%ual
nee%s! un%er con%itions least ex#ose% to $iolent %isturbance or occasions of
la"-brea&ing
2t is just this fun%amental i%ea of #enal substitutes "hich sho"s ho"
necessary it is that the sociologist an% legislator shoul% ha$e such a
#re#aration in biology an% #sychology as 3r S#encer justly insiste% on in his
ZZ2ntro%uction to Social Science'' @n% it is the fun%amental i%ea rather than
the substitutes themsel$es that "e shoul% bear in min% if "e "oul% realise
their theoretical an% #ractical $alue as #art of a system of criminal sociology
@s for the e>cacy of any #articular #enal substitute! 2 rea%ily a%mit! in some
sense at least! the #artial criticisms "hich ha$e been #asse% u#on them
@#art from such as sim#ly say that they %o not belie$e in the use of
alternati$es to #unishment! an% such as con'ne themsel$es to the futile
Iuestion "hether this theory belongs to criminal science or to #olice
a%ministration! a majority of criminal sociologists ha$e no" %e'nitely
acce#te% the %octrine of #enal substitutes This theory is acce#te%! not as an
absolute #anacea of crime! but! as 2 ha$e al"ays state% it! in the sense of a
combination of measures analogous to #enal re#ressionS in #lace of trusting
solely to re#ression for the %efence of society against crime
=et us ta&e note of a fe" exam#les
2 2n the Economic S#here[Free Tra%e Aa#art from the tem#orary necessity of
#rotecting a #articular manufacturing or agricultural in%ustryB! by #re$enting
famines an% exce#tional high #rices of an% taxes on foo%! eliminates many
crimes an% oRences! es#ecially against #ro#erty[<nrestricte% emigration is
a safety- $al$e! es#ecially for a country in "hich this #henomenon! assuming
large #ro#ortions! carries oR many #ersons "ho are easily %ri$en to crime by
"retche%ness! or by their unbalance% energy Thus the number of reci%i$ists
has %iminishe% in 2relan%! not by $irtue of her #rison systems! but by
emigration! "hich reache% forty-six #er cent of release% #risoners 2n 2taly!
also! there has been a %ecrease of crime since 1EE0! o"ing to other causes!
such as mil% "inters an% #lentiful har$ests! but also through a $ast increase
of emigration[Smuggling! "hich for centuries resiste% extremely harsh
#unishments! such as am#utation of the han%! an% e$en %eath! an% "hich
still resists #rison an% the 're-arms of the re$enue o>cers! is su##resse% by
the lo"ering of the im#ort tariR! as 3 ,illerme has sho"n in the case of
France So that e$ery%ay facts justify the system of @%am Smith! "ho sai%
that the la" "hich #unishe% smuggling! after creating the tem#tation! an%
"hich increase% the #unishment "hen it increase% the tem#tation! "as
o##ose% to all justiceS "hilst .entham! on the contrary! %e#arting from his
maxim that the #unishment ought to be %rea%e% more strongly than the
oRence attracte%! calle% for the stern re#ression of smuggling[The system
of taxation "hich touches "ealth an% $isible resources instea% of the #rime
necessaries of life! an% "hich is #ro#ortional to the tax#ayer's income!
%iminishes the systematic frau%s "hich no #unishment a$aile% to sto#! an% it
"ill also abolish the arbitrary an% exaggerate% 'scal tra%itions "hich ha$e
been the cause of rebellions an% outrages 2n fact! Fregier %escribes the
criminal in%ustries "hich are calle% into existence by octrois! an% "hich "ill
%isa##ear "ith the abolition of these absur% an% unjust %uties @n% "hilst 3
@llar% %emonstrate% that a %ecrease of taxes on necessaries "oul% ha$e
bene'cial eRects! not only in economic aRairs but also in res#ect of
commercial frau%s! the -e#ort on French Criminal Statistics for 1E1D calmly
continue% to call for more se$ere re#ression of such frau%s To this 3 3ercier
re#lie% that if the cause[that is to say! %is#ro#ortionate taxes["ere not
remo$e%! it "oul% be im#ossible to #re$ent the eRects[2mmunity from
taxation for the minimum necessary to existence! by #re$enting %istraint! an%
the conseIuent %iminution of small #ro#erties! "hich means the increase of
the $ery #oor! "ill ob$iate many crimes! as "e see from the agrarian
con%itions in 2relan% Thus there is a %eman% in 2taly for the inalienability of
small #ro#erties! as in @merica un%er the /omestea% Exem#tion =a"[Public
"or&s! %uring famine an% har% "inters! chec& the increase of crimes against
#ro#erty! the #erson! an% #ublic or%er For instance! %uring the scarcity of
1EJG-J in France! there "as no such enormous increase of theft as %uring the
famine of 1E71! sim#ly because the Go$ernment set u# $ast relief "or&s in
the "inter months
The taxes an% other in%irect restrictions on the #ro%uction an% sale of alcohol
are far more e>cacious than our more or less enormous gaols The Iuestion
of #ronounce% an% chronic %run&enness has increase% in gra$ity! o"ing to its
eRect u#on the #hysical an% moral health of the #eo#le
2n France the a$erage consum#tion of "ine! estimate% at 4D litres A1G47
gallonsB #er hea% in 1ED0! excee%e% 100 litres in 1E40S an% in Paris the
a$erage of 1D0 litres in 1E10-G0! reache% DD1 litres in 1EE1 The a$erage
yearly consum#tion of alcohol in France rose from 0G in 1ED0 to GD7 in
1E1D! an% G0 in 1EEJ! the rates in a fe" to"ns being still higher The total
manufacture of alcohol in France A0J #er cent of "hich is consume% in the
form of %rin&B rose from 710!4E0 hectolitres in 1E7G to 1!G00!J4J in 1E10!
an% D!007!000 in 1EE1 Simultaneously! "e ha$e seen that there "as an
increase of crimes an% oRences in France! suici%es in #articular ha$ing
increase% from 1!J7D in 1ED0 to E!D0D in 1EE1
3oreo$er 2 ha$e sho"n by a s#ecial table A@rchi$io %i PsichiatriaB that in
France! %es#ite a certain ine$itable $ariation from year to year! there is a
manifest corres#on%ence of increase an% %ecrease bet"een the number of
homici%es! assaults! an% malicious "oun%ing! an% the more or less abun%ant
$intage! es#ecially in the years of extraor%inary $ariations! "hether of failure
of the $intage A1EJG-J! 1EJ0! 1E41! 1E1G! 1E1E-E0B! atten%e% by a
remar&able %iminution of crime Aassaults an% "oun%ingB! or of abun%ant
$intages A1EJ0! 1EJ4-E! 1E4D-G! 1E4J! 1E4E! 1E17-JB atten%e% by an
increase of crime
2 "as also the 'rst to sho" that in the $intage months there is an increase of
occasional crimes an% oRences against the #erson! o"ing to that connection
bet"een %rin& an% crime "hich ha% alrea%y been remar&e% u#on by 3
PierIuin amongst others! an% illustrate% by the ne"s#a#er re#orters on the
%ays "hich follo" Sun%ays an% holi%ays
.ut a#art from their natural $ariation! the connection bet"een %rin& an%
crime is %e'nitely establishe% E$ery %ay "e ha$e the con'rmation of 3orel's
statement! that ZZalcoholism has #ro%uce% a %emoralise% an% brutalise%
class of "retche% beings! characterise% by an early %e#ra$ation of instincts!
an% by in%ulgence in the most immoral an% %angerous actions'' 2t is useless
to Iuote again in this #lace the %ata of #sycho- #athology an% legal me%icine!
or those of #rison statistics relating to im#risone% %run&ar%s! or to ta$ern
bra"ls as the #ro$e% causes of crime
;e$ertheless it is a fact that the relation of cause an% eRect bet"een %rin&
an% crime has recently been %enie%! "ith the ai% of arguments base% u#on
statistics 3 Tammeo o#ene% the %iscussion by obser$ing that the countries
of Euro#e an% the #ro$inces of 2taly %istinguishe% by the largest consum#tion
of alcohol! sho" lo"er ratios un%er the "orst crimes of $iolence /e ga$e to
his remar& a relati$e an% limite% $alue! for he only %enie% that the abuse of
liIuor "as the most acti$e cause of crime @fter him 3 Fournier %e Flaix!
maintaining the same #ro#osition "ith the same statistical arguments! an%
a%mitting that ZZalcohol is a s#ecial scourge for the in%i$i%ual "ho in%ulges in
it!'' yet conclu%e% that ZZalcoholism is not a scourge "hich menaces the
Euro#ean race'' @n% he re#eate% that the nations "hich consume% the
greatest Iuantity of alcohol sho" a slighter freIuency of crime! es#ecially
against the #erson =astly 3 Colajanni enlarge% u#on the same #ro#osition!
using the statistical %ata so fully set out by 3 Uummer! an% %re" a still more
#ositi$e conclusion! that ZZthere is a lac& of constancy! regularity! an%
uni$ersality in the relations! coinci%ence! an% seIuence! as bet"een
alcoholism an% crime an% suici%eS so that it is im#ossible to establish any
statistical relation of cause an% eRect bet"een these #henomena''
Passing o$er the gra$e errors of fact in 3 Colajanni's brochure! 2 "ill only
obser$e that this #ro#osition is a #ure misa##rehension of statistical logic
2f "e once a%mit Aan% unfortunately it cannot be %enie%B the ba% in\uence of
alcohol on bo%ily an% mental health! in the form of s#irits as "ell as of "ine[
as to "hich it is not correct to say that the southern %e#artments are not
consumers of alcohol[it cannot be maintaine% that alcohol! "hich is
#hysically an% morally injurious to in%i$i%uals! is not hurtful to nations! "hich
are but aggregates of in%i$i%uals
There is an easy ans"er to the statistical arguments A1B @ symmetrical an%
continuous agreement of 'gures is ne$er foun% in any collection of statistics!
for in all that concerns a society the inter$ention of in%i$i%ual! #hysical! an%
social causes is ine$itable ADB @ negati$e conclusion from these #artial an%
natural %isagreements Afor it is es#ecially true in biology an% sociology that
e$ery rule has its exce#tions! %ue to inter$ening causesB "oul% only be
justi'e% if it ha% been maintaine% that alcoholism is the sole an% exclusi$e
cause of crime .ut as this has ne$er been asserte% by anybo%y! all the
statistical arguments of Fournier an% Colajanni are base% on a
misa##rehension @n% unfortunately they %o not %estroy the lin& of causality
bet"een %rin& an% crime This connection is occasional! in assaults!
"oun%ing! an% homici%e in acute alcoholism 2t is habitual! in the case of
chronic alcoholism! as in crimes against #ro#erty! the #erson! morality! an%
#ublic o>cers @n% this in s#ite of the relati$ely lo" 'gures! though lo"er
than the facts "arrant! containe% in the general statements! a#art from
s#ecial an% scienti'c inIuiries into alcoholism as a %irect an% manifest cause
of crime an% suici%e
2 "rote as early as 1EE1 that alcoholism! #rior to its becoming a cause! is the
eRect of "retche% social con%itions in the #oorer classesS an% that to the one-
si%e% sim#licity of economic causes it is necessary to a%% certain bio-
#sychical con%itions an% con%itions of #hysical en$ironment! "hich go far to
%etermine the geogra#hical %istribution of s#irit-alcoholism Achronic an% more
serious! in northern countries an% #ro$incesB an% "ine-alcoholism Aacute an%
less %ee#-seate%! in the countries an% #ro$inces of the southB
2t "as therefore natural that in%irect measures against alcoholism shoul%
ha$e been resorte% to long ago! such as the raising of the tax on alcoholic
%rin&s! an% the lo"ering of that on "holesome be$erages! such as coRee!
tea! an% beerS strict limitation of the number of licensesS increase%
res#onsibility of license-hol%ers before the la"! as in @mericaS the ex#ulsion
of ti#sy members from "or&men's societiesS the #ro$ision of chea# an%
"holesome amusementsS the testing of "ines an% s#irits for a%ulterationS
better organise% an% combine% tem#erance societiesS the circulation of tracts
on the injurious eRects of alcoholS the abolition of certain festi$als "hich
ten%e% rather to %emoralisation than to healthS %iscouragement of the
custom of #aying "ages on Satur%ayS the establishment of $oluntary
tem#erance homes! as in @merica! Englan%! an% S"it9erlan%
;orth @merica! Englan%! S"e%en an% ;or"ay! France! .elgium! /ollan%! an%
S"it9erlan% ha$e a##lie% reme%ies against %run&enness Ato the length of a
State mono#oly of %rin& in S"it9erlan%BS but "ith too much 9eal for #ublic
re$enue! an%! un%er the #retext of #ublic health! almost exclusi$ely frame%
"ith a $ie" to %uties on manufacture! %istribution! an% consum#tion Pet
these %uties are Iuite ina%eIuate by themsel$es! an% may e$en ten% to the
injury of the #hysical an% moral health of the nation! the increase of #rice!
lea%ing to frau%s an% a%ulteration
Penal la"s against %run&enness! naturally resorte% to in all countries! are far
from being eRectual There is so far no system of %irect an% in%irect
measures against alcoholism! %uly co-or%inate%! beyon% taxation an%
#unishment @n% "e #ercei$e! as for instance in France! in s#ite of the
re#ressi$e la" intro%uce% by my %istinguishe% frien% Senator -oussel
AQanuary! 1E1GB! an% in s#ite of the extremely high %uties! "hich "ere
%ouble% in 1E1D an% 1EE0! that alcoholism #ersists "ith a terrible an% fatal
increase So it is! more or less! in e$ery country still! in s#ite of %uties an%
#unishments
The irregularity of "ages! an% the %eceitful $igour im#arte% by the 'rst
recourse to alcohol! the #o$erty an% excessi$e toil of the "or&ing classes!
insu>ciency of foo%! inherite% habits! an% the lac& of e>cacious #re$enti$e
measures! are in\uences "hich #re$ent the "or&ing man from resisting this
scourgeS an% no 'scal or re#ressi$e la"! acting solely by %irect com#ulsion!
"ill e$er be able to #aralyse these natural ten%encies! "hich can only be
"ea&ene% by in%irect measures :n the other han%! "hen "e remember that
habitual intoxication! so common in me%iae$al %ays amongst the nobles an%
to"nsfol&! has gro"n less an% less freIuent in those classes Aai%e% by the
intro%uction an% ra#i% %iRusion of coRee since the time of =ouis N2,B! it is
#ossible to ho#e that the im#ro$ement of economic! intellectual! an% moral
con%itions amongst the #o#ulace "ill gra%ually succee% in mo%ifying this
terrible #lague of %rin&! "hich cannot be cure% all at once
To continue our illustrations of #enal substitutes! "e see that the substitution
of metallic money for a #a#er me%ium %ecreases the number of forgers! "ho
on the contrary ha% %e'e% #enal ser$itu%e for life False money is more easily
%etecte% than a s#urious note5178[3oney %ealers an% %ealers in #recious
stones ha$e %one more than any #unishment to chec& the crime of usury! as
"as sho"n in the case of S#ain! after her @merican conIuestsS "hereas
me%iae$al #unishments ne$er #re$ente% the recru%escence of usury in one
form or another Po#ular an% @gricultural Cre%it .an&s! "hich are #ractically
"ithin the reach of all! are more e>cacious against usury in our o"n %ays
than the s#ecial re#ressi$e la"s enacte% once more in Germany an% @ustria!
un%er the in\uence of the ol% illusion[)ith the %iminution of interest on the
#ublic fun%s the stream of ca#ital has been %i$erte% into commerce!
manufactures! an% agriculture! thus "ar%ing oR stagnation! "ith the
ban&ru#tcies! forgeries! frau%s! ]c! "hich result therefrom[The a%justment
of salaries to the nee%s of #ublic o>cials! an% to general economic
con%itions! stems the ti%e of corru#tion an% embe99lement! "hich "ere #artly
%ue to their conceale% #o$erty[=imite% hours of %uty for the res#onsible
ser$ices on "hich the safety of the #ublic %e#en%s! as for instance in rail"ay
stations! are far more ser$iceable in #re$enting acci%ents than the useless
#unishment of those "ho are guilty of manslaughter[/igh-roa%s! rail"ays!
an% tram"ays %is#erse #re%atory ban%s in rural %istricts! just as "i%e streets
an% large an% airy %"ellings! "ith #ublic lighting an% the %estruction of
slums! #re$ent robbery "ith $iolence! concealment of stolen goo%s! an%
in%ecent assaults[2ns#ection of "or&sho#s an% shorter hours for chil%ren's
labour! "ith their su#erinten%ence of marrie% "omen! may be a chec& on
in%ecent assaults! "hich #enal ser$itu%e %oes not #re$ent[Chea#
"or&men's %"ellings! an% general sanitary measures for houses both in
urban an% rural %istricts! care being ta&en not to cro"% them "ith #oor
families! ten% to #hysical health! as "ell as to #re$ent many forms of
immorality[Co-o#erati$e an% mutual societies! #ro$i%ent societies an%
insurance against ol% age! fun%s for sic& an% in'rm "or&men! em#loyers'
liability for acci%ents %uring "or&! from machinery or other"iseS #o#ular
sa$ings' ban&s! charity organisation societies an% the li&e! ob$iate a large
number of oRences against #ro#erty an% the #erson much better than a
#enal co%e[2 ha$e maintaine% in the 2talian Parliament that the reform of
religious charities! "hich in 2taly re#resent fun%s to the amount of t"o
milliar%s! might lea% to the #re$ention of crime[3easures for the
%iscouragement of men%acity an% $agrancy! abo$e all agricultural colonies!
as in /ollan%! .elgium! Germany! an% @ustria! "oul% be the best #enal
substitute for the $ery freIuent oRences committe% by $agabon%s Thus it
may be conclu%e% that a #ru%ent social legislation! not sto##ing short at
mere su#er'cial an% #erfunctory reforms! might constitute a genuine co%e of
#enal substitutes! "hich coul% be set against the mass of criminal im#ulses
engen%ere% by the "retche% con%itions of the most numerous classes of
society
5178 Coiners an% forgers of notes constitute 00 #er cent of the total of
con%emne% #ersons in France! an% 07 #er cent in .elgiumS but they reach 7
#er cent in 2taly! on account of the greater circulation of ban&notes
22 2n the Political S#here[For the #re$ention of #olitical crime! such as
assassination! rebellion! cons#iracies! ci$il "ar! arbitrary re#ression an%
#re$ention by the #olice are #o"erlessS there is no other means than
harmony bet"een the Go$ernment an% the national as#irations 2taly has
been a cons#icuous exam#le of this! for un%er the rule of the foreigner!
neither the scaRol% nor the galleys coul% hin%er #olitical outrages! "hich
ha$e %isa##eare% "ith national in%e#en%ence So "ith 2relan% an% -ussia
Germany! "hich belie$e% that it coul% stam# out socialism by exce#tional
#enal la"s! %isco$ere% its mista&e[For so-calle% #ress oRences A"hich are
either or%inary oRences committe% by the ai% of the #ress! or are not
oRences at allB! nothing but free%om of o#inion can ren%er attac&s an%
#ro$ocations of a #olitical ty#e less freIuent[-es#ect for the la" s#rea%s
through a nation by the exam#le on the #art of the go$erning classes an%
authorities of constant res#ect for the rights of in%i$i%uals an% associations!
far better than by #olicemen an% #risons[Electoral reform a%a#te% to the
con%ition of a country is the only reme%y against electoral oRences[
Similarly! in a%%ition to the economic reforms alrea%y in%icate%! #olitical an%
#arliamentary reforms are much more ser$iceable than the #enal co%e in
#re$enting many oRences of a social an% #olitical ty#e! #ro$i%e% that a more
real harmony has been establishe% bet"een a country an% its la"ful
re#resentation! an% that the latter is free% from the occasions an% the forms
"hich lea% to its abuse! by remo$ing technical Iuestions from injurious
#olitical in\uences! an% gi$ing the #eo#le a more %irect authority o$er #ublic
aRairs! inclu%ing the referen%um[Finally! that great mass of crimes! isolate%
or e#i%emic! e$ol$e% by unsatis'e% nee%s an% the neglect of se#arate
%i$isions of a country! "hich %iRer in climate! race! tra%itions! language!
customs! an% interests! "oul% be largely eliminate% if "e "ere to %is#ense
"ith the $ague folly of #olitical symmetry an% bureaucratic centralisation!
an% in their #lace to a%a#t the la"s to the s#ecial features of the res#ecti$e
localities ;ational unity in no "ay %e#en%s u#on legislati$e an%
a%ministrati$e uniformity! "hich is merely its unhealthy exaggeration 2t is
in%ee% ine$itable that la"s! "hich in our %ay merely re#resent a mo%e of
contact bet"een the most $arie% moral! social an% economic con%itions of
%iRerent localities! shoul% al"ays be ina%eIuate to social nee%s[too
restricte% an% slo" in action for one #art of the country! too s"ee#ing an%
#remature for another #art! just as the a$erage con$ict's garb is too long for
those "ho are short! an% too short for those "ho are tall @%ministrati$e
fe%eration "ith #olitical unity Ae #luribus unumB "oul% furnish us "ith an
aggregate of #enal substitutes! restoring to each #art of the social organism
that free%om of mo$ement an% %e$elo#ment "hich is a uni$ersal la" of
biology an% sociology[for an organism is but a fe%eration too lightly
a##reciate% by the a%$ocates of an arti'cial uniformity! such as en%s by
con\icting "ith unity itself
222 2n the Scienti'c S#here[The %e$elo#ment of science! "hich creates fresh
instruments of crime! such as 're-arms! the #ress! #hotogra#hy! lithogra#hy!
ne" #oisons! %ynamite! electricity! hy#notism! an% so forth! sooner or later
#ro$i%es the anti%ote also! "hich is more e>cacious than #enal re#ression[
The #ress! anthro#ometric #hotogra#hy of #risoners! telegra#hy! rail"ays!
are #o"erful auxiliaries against crime[*issection an% the #rogress of
toxicology ha$e %ecrease% the number of #oisoning casesS an% ex#erience
has alrea%y #ro$e% that ZZ3arsh's #re#aration'' has ren%ere% #oisoning by
arsenic! once so common! com#arati$ely rare[@ similar #rocess has recently
been suggeste% as a means of %etection in cases of forgery! for "hen
%ocuments are ex#ose% to io%ine $a#our! eRace% or altere% "riting is
restore%[)omen %octors "ill %iminish the o##ortunities of immorality[The
free ex#ression of o#inion "ill %o more to #re$ent its #ossible %angers than
trials of a more or less scan%alous &in%[Piracy! "hich "as not extir#ate% by
#unishments "hich are no" obsolete! is %isa##earing un%er the eRects of
steam na$igation[The s#rea% of 3althusian i%eas #re$ents abortion an%
infantici%es51J8[Systematic boo&&ee#ing! by its clearness an% sim#licity!
ob$iates many frau%s an% embe99lements! "hich "ere encourage% by the ol%
com#licate% metho%s[CheIues! by a$oi%ing the necessity of freIuent
con$eyance of money! %o more to #re$ent theft than #unishments can %o[
The cre%entials gi$en by some ban&s to their cler&s! "hose %uty it is to
"itness the signature of the actual %ebtor! #re$ent the falsi'cation of bills[
Certain ban&ers ha$e a%o#te% the #ractice of ta&ing an instantaneous
#hotogra#h of e$ery one #resenting cheIues for large amounts[Safes!
bolts! an% alarm- bells! are a great security against thie$es [@s a #re$enti$e
of mur%er in rail"ay carriages! it has been foun% that alarm signals an%
metho%s of securing the carriage-%oors from the insi%e! are more eRectual
than #enal co%es
51J8 ;o %oubt there may be a %iRerence of o#inion on this subject in France!
"here #ublic o#inion is too much exercise% o$er the #roblem of %e#o#ulation
2 agree "ith 3 ,arigny AZZ=a Theorie %u ;ombre!'' -e$ue %es *eux 3on%es!
*ec 1J! 1E00B that the #o#ulation of a country is not the sole! or e$en the
#rinci#al consi%eration @#art from #hysical characteristics AraceB! intellectual
an% moral Iualities! an% the #ro%ucti$eness of the soil on "hich 3 ,arigny
%"ells! "e must ta&e into account! as it seems to me! the unIuestionable la"
by $irtue of "hich the struggle for existence! amongst in%i$i%uals as amongst
nations! becomes gra%ually less $ehement an% %irect )ar! "hich is an
e$ery%ay matter "ith sa$ages! gro"s constantly more rare an% %i>cult The
$arying social an% international conscience of ci$ilise% humanity is not to be
neglecte%! an% it must be rec&one% "ith as a #ositi$e factor in consi%ering
the %estiny of nations 3en continue to s#ea& of the #erils of "ar Ain "hich
numbers stan% for a great %eal! but are not the exclusi$e elementB as though
the social conscience of our o"n %ay "ere still the same as that of the 3i%%le
@ges 2n se$eral res#ects! on the other han%! the thinner #o#ulation of France
is one cause of its "ealth! an% therefore of its #o"er Germany has a more
numerous! but also a #oorer #o#ulation @n% 2 %o not belie$e that the actual
#o"er of nations! on "hich their future %e#en%s! consists in loa%ing a #eo#le
"ith arms after enfeebling it by military ex#en%iture! "hich from the year
1EE0 has in%icate% a %istinct e#i%emic mania on the continent of Euro#e
2, 2n the =egislati$e an% @%ministrati$e S#here[)ise testamentary
legislation #re$ents mur%ers through the im#atient gree% of next-of-&in! as in
France %uring a former age! "ith "hat "as &no"n as ZZsuccession #o"%er''[
@ la" to facilitate the securing of #aternal assent for the marriage of chil%ren
Aas suggeste% by /erschel in his ZZTheory of Probabilities''B in countries "hich
reIuire the assent of both #arents! an% for a>liation an% breach of #romise of
marriage! "ith #ro$ision for chil%ren born out of "e%loc&! are excellent as
against concubinage! infantici%e! abortion! ex#osure of infants! in%ecent
assaults! an% mur%ers by "omen aban%one% after se%uction :n this hea%
.entham sai% that concubinage regulate% by ci$il la"s "oul% be less
mischie$ous than that "hich the la" %oes not recognise but cannot #re$ent
[Chea# an% easy la" is a #re$enti$e of crimes an% oRences against #ublic
or%er! the #erson an% #ro#erty! as 2 ha$e alrea%y sai%[The ancient 2talian
institution of @%$ocate of the Poor! if substitute% for the #resent illusory
assistance by the courts! "oul% #re$ent many acts of re$enge So also "oul%
a strict an% s#ee%y in%emnity for the $ictims of other men's crimes! intruste%
to a #ublic minister "hen the injure% #erson is not able to resort to the la"S
for as 2 ha$e maintaine%! "ith the a##ro$al of sun%ry criminal sociologists!
ci$il res#onsibility for crime ought to be as much a social obligation as #enal
res#onsibility! an% not a mere #ri$ate concern[Sim#li'cation of the la"
"oul% #re$ent a large number of frau%s! contra$entions! ]c! for! a#art from
the meta#hysical an% ironical assertion that ignorance of the la" excuses no
man! it is certain that our forest of co%es! la"s! %ecrees! regulations an% so
forth! lea%s to en%less misa##rehensions an% mista&es! an% therefore to
contra$entions an% oRences[Commercial la"s on the ci$il res#onsibility of
%irectors! on ban&ru#tcy #rocee%ings an% the registration of sharehol%ers! on
ban&ru#ts' %ischarges! on in%ustrial an% other exchanges! "oul% %o more
than #enal ser$itu%e to #re$ent frau%ulent ban&ru#tcy[Courts of honour!
recognise% an% regulate% by la"! "oul% ob$iate %uels "ithout ha$ing
recourse to more or less serious #unishments[@ "ell organise% system of
con$eyancing chec&s forgery an% frau%! just as registration o>ces ha$e
almost abolishe% the #alming an% re#u%iation of chil%ren! "hich "ere so
common in me%iae$al times *e#uty 3ichelin! in or%er to %iscourage bigamy!
#ro#ose% in 1EE4 to institute in the registers of births for e$ery commune a
s#ecial column for the ci$il stan%ing of each in%i$i%ual! so that any one "ho
contem#late% marriage "oul% ha$e to #ro%uce a certi'cate from this register!
an% thus "oul% be unable to conceal a #re$ious marriage "hich ha% not been
%issol$e% by %eath or %i$orce[The form of in%ictment by "or% of mouth in
#enal #roce%ure has #re$ente% many calumnies an% false charges[
Foun%ling an% or#han homes! or! still better! some less ol%-fashione%
substitute! such as lying-in hos#itals an% home atten%ance for young
mothers! might %o much to #re$ent infantici%e an% abortion! "hich are not
chec&e% by the se$erest #unishment[Prisoners' ai% societies! es#ecially for
the young! might be useful as #enal substitutes! although much less so than
is generally allege%! "ith #lenty of eloIuence an% little #ractical "or& There
is al"ays this strong objection to them! that "e ought to succour "or&men
"ho continue honest in s#ite of their "retche%ness before those "ho ha$e
been in #risonS an% again! in #lace of besto"ing #atronage on release%
#risoners "ithout %istinction! many of "hom are incorrigible! "e ought to
select the occasional criminals an% criminals of #assion! "ho alone are
ca#able of amen%mentS an% assisting them "e shoul% a$oi% anything li&e
#olice formalities @s a matter of fact it a##ears that! e$en in Englan%! "here
these societies are most acti$e! their inter$ention! li&e all %irect charity! is too
far belo" the nee%s of those for "hom #ro$ision is necessary
, 2n the S#here of E%ucation[2t has been #ro$e% that mere boo& e%ucation!
"hilst it is useful in ren%ering certain gross frau%s more %i>cult! in exten%ing
a &no"le%ge of the la"s! an% abo$e all in %iminishing im#ro$i%ence! so
characteristic of the occasional criminal! is far from being the #anacea of
crime "hich #eo#le imagine% "hen they foun% in the criminal statistics a
large #ro#ortion of illiterate #risoners 2t must also be sai% that schools "hich
are not closely ins#ecte% are freIuently hotbe%s of immorality 2t is
necessary! therefore! to rely on the in\uence of a "i%er e%ucation! limite%
though this may be in its turn 2 %o not mean a mechanical instruction in
moral maxims! a##ealing to the intelligence "ithout reaching the feelings!
but rather of the exam#les aRor%e% by e$ery &in% of social institution! by the
go$ernment an% the #ress! by the school of the stage an% of #ublic
entertainments[2t "oul% be "ell! ho"e$er! to abolish certain $ulgar an%
sensual entertainments! an% to substitute for them "holesome amusements
an% exercises! #ublic baths! #ro#erly su#erinten%e%! an% so built as to ren%er
#ri$ate meetings im#ossible! chea# theatres! an% so forth Thus the
#rohibition of cruel s#ectacles! an% the su##ression of gambling houses! are
excellent #enal substitutes[The ex#erimental metho% in the teaching of
chil%ren! "hich a##lies the la"s of #hysio- #sychology! accor%ing to the
#hysical an% moral ty#e of each #u#il! an% by gi$ing him less of archaeology!
an% more &no"le%ge ser$iceable in actual life! by the mental %isci#line of the
natural sciences! "hich alone can %e$elo# in him a sense of the actual! such
as our classical schools only enfeeble! "oul% a%a#t men better for the
struggle of existence! "hilst %iminishing the number of those left "ithout
occu#ation! "ho are the can%i%ates of crime[3any of the causes of crime
"oul% be ni##e% in the bu% by chec&ing %egeneration through #hysical
e%ucation of the young! as "ell as by #re$enting %emoralisation by means of
the e%ucation of aban%one% chil%ren! at such institutions as the "or&house!
ragge% an% in%ustrial schools! so "ell %e$elo#e% in Englan%[or! still better!
by the boar%ing out of chil%ren! so as to a$oi% o$er- cro"%ing[:ne class of
in%ucements to crime "oul% be eliminate% by restrictions im#ose% on
scan%alous #ublications "hich concern themsel$es exclusi$ely "ith crime!
ha$ing no other object than to tra%e u#on the most brutal #assions! an%
"hich are allo"e% to exist un%er an abstract conce#tion of liberty! sa$e that
the res#onsible con%uctors are #unishe% "hen the e$il has been %one[
Similarly there ought to be some restriction u#on the right of a%mission to
#olice-courts an% assi9es! "here our "omen hustle each other as the -oman
"omen of the %ecline scramble% to be #resent at the im#erial circus-sho"s!
an% "here our young men an% our har%ene% criminals recei$e lessons in the
art of committing crimes "ith greater smartness an% #recaution
The instances "hich 2 ha$e gi$en! an% "hich might be multi#lie% into a
#re$enti$e co%e as long as the #enal co%e! #ro$e to %emonstration ho" large
a #art is #laye% by social factors in the genesis of crime! an% es#ecially of
occasional crime .ut they #ro$e still more clearly that the legislator! by
mo%ifying these causes! can in\uence the %e$elo#ment of crime "ithin limits
im#ose% by the com#etition of other anthro#ological an% #hysical factors
Tuetelet "as right! therefore! "hen he sai% in this connection! ZZSince the
crimes committe% e$ery year seem to be the necessity of our social
organisation! an% their number cannot be %iminishe% if the causes to "hich
they are %ue cannot be mo%i'e% in a #re$enti$e sense! it beho$es legislators
to recognise these causes! an% to eliminate them as far as #ossible They
must frame the bu%get of crime as they frame that of the national re$enue
an% ex#en%iture''
2t must ne$ertheless be borne in min% that all this "ill ha$e to be %one a#art
from the #enal co%eS for it is true! ho"e$er strange! that history! statistics!
an% %irect obser$ation of criminal #henomena #ro$e that #enal la"s are the
least eRectual in #re$enting crime! "hilst the strongest in\uence is exercise%
by la"s of the economic! #olitical! an% a%ministrati$e or%er
2n conclusion! the legislator shoul% be con$ince% by the teaching of scienti'c
obser$ation that social reforms are much more ser$iceable than the #enal
co%e in #re$enting an inun%ation of crime The legislator! on "hom it
%e$ol$es to #reser$e the health of the social organism! ought to imitate the
#hysician! "ho #reser$es the health of the in%i$i%ual by the ai% of
ex#erimental science! resorts as little as #ossible! an% only in extreme cases!
to the more forcible metho%s of surgery! has a limite% con'%ence in the
#roblematic e>ciency of me%icines! an% relies rather on the trust"orthy
#rocesses of hygienic science :nly then "ill he be able to a$oi% the
%angerous fallacy! e$er #o#ular an% full of life! "hich Signor ,acca! Uee#er of
the Seals! ex#resse% in these "or%s? ZZThe less "e ha$e recourse to
#re$enti$e measures! the more se$ere ought our re#ression to be'' )hich is
li&e saying that "hen a con$alescent has no sou# to #ic& u# his strength! "e
ought to a%minister a %rastic %rug
2t is #recisely on this #oint that the #ractical! rather than the merely
theoretical! %iRerences bet"een the #ositi$e an% the classical schools of
#enal la" become e$i%ent )hilst "e belie$e that social reforms an% other
measures suggeste% by a stu%y of the natural factors of crime are most
eRecti$e in #re$enting crime! legislators! em#loying the a #riori metho% of
the classical school! ha$e for many years #ast been %iscussing #ro#ose%
#enal co%es! "hilst they #ermit criminality to ma&e stea%y #rogress 2t is
another case of *um -omae consulitur! Saguntum ex#ugnatur
@n% "hen the legislators 'n% their .y9antine %iscussions on the ZZjuri%ical
entities'' of crime an% #unishment bro&en in u#on by a recru%escence of
crime! or by a serious manifestation of some #henomenon of social
#athology! then all they can %o in their #er#lexity an% astonishment is to #ass
some ne" re#ressi$e la"! "hich for a moment stills the outcry of #ublic
o#inion! an% remits the matter once more from the acute to the chronic
#hase
The #ositi$e theory of #enal substitutes! a#art from any #articular exam#le!
aims #recisely at furnishing a mental %isci#line for legislators! an% bringing
home to them the %uty of constant reinforcements of social #re$ention! no
matter ho" %i>cult it may be! before the e$il comes to a hea%! an% forces
them too late to a course of re#ression "hich is as easy as it is fallacious ;o
%oubt it is $exatious an% %i>cult! e$en in #ri$ate life! to be #er#etually li$ing
u# to rules of healthS an% it is easier! if more %angerous! to forget them! an%
to \y! "hen the mischief %eclares itself! to %rugs "hich are too freIuently
%ece#ti$eS but it is just the "ant of forethought! both #ublic an% #ri$ate!
"hich it is so im#ortant to o$ercome @n% as hygienic science "as not
#ossible as a theory or as a #ractice until after the ex#erimental obser$ations
an% #hysio-#athology on the causes of %isease! es#ecially of e#i%emic an%
infectious %iseases! together "ith the %isco$eries of 3 Pasteur! "ho create%
bacteriologyS so social hygiene as against crime "as only #ossible as a
theory! an% "ill not be so as a #ractice! till the %iRusion of the facts of biology
an% criminal sociology relating to the natural causes of crime! es#ecially of
occasional crime
The great thing is to be con$ince% that! for social %efence against crime! as
for the moral ele$ation of the masses of men! the least measure of #rogress
"ith reforms "hich #re$ent crime is a hun%re% times more useful an%
#ro'table than the #ublication of an entire #enal co%e
)hen a minister intro%uces a la"! for instance! on rail"ays! customs %uties!
"ages! taxation! com#anies! ci$il or commercial institutions! there are fe"
"ho thin& of the eRect "hich these la"s "ill ha$e on the criminality of the
nation! for it is imagine% that su>cient has been %one in this res#ect by
means of reforms in the #enal co%e 2n the social organism! on the other
han%! as in in%i$i%uals! there is an ine$itable soli%arity! though freIuently
conceale%! bet"een the most %istant an% %iRerent #arts
2t is just from these la"s of social #hysiology an% #athology that "e %eri$e
the notion of #enal substitutes! "hich at the same time "e must not
%issociate from the la" of criminal saturation For if it is true that by
mo%ifying the social factors "e can #ro%uce an eRect on the %e$elo#ment of
crime! an% es#ecially of occasional crime! it is also true! unfortunately! that in
e$ery social en$ironment there is al"ays a minimum of ine$itable criminality!
%ue to the in\uence of the other factors! biological an% #hysical :ther"ise
"e might easily fall into the o##osite an% eIually fallacious illusion of thin&ing
that "e coul% absolutely su##ress all crimes an% oRences For it is easy to
reach on one si%e the em#iric i%ea of #enal terrorism! an% on the other si%e
the hasty an% one-si%e% conclusion that to abolish some #articular institution
"oul% get ri% of its abuses The fact is that "e must consi%er before all things
"hether it is not a less e$il to #ut u# "ith institutions! ho"e$er incon$enient!
an% to reform them! than to forfeit all the a%$antages "hich they aRor% @n%
it must abo$e all be borne in min% that as society cannot exist "ithout la"! so
la" cannot exist "ithout oRences against the la" The struggle for existence
may be fought by honest or economic acti$ity! or by %ishonest an% criminal
acti$ity The "hole #roblem is to re%uce to a minimum the more or less
criminal rudings an% shoc&s! yet "ithout %isturbing ZZsocial or%er!'' ami%st
the in%iRerence or ser$ility of a s#iritless #eo#le! or resorting to #olicemen
an% #risons on e$ery slight occasion
These general obser$ations on #enal substitutes in connection "ith the la" of
criminal saturation are a su>cient ans"er to the t"o chief objections raise%
e$en by such as agree "ith me in theory
2t has been urge%! in eRect! that some of the #enal substitutes "hich 2 ha$e
enumerate% ha$e alrea%y been a##lie%! "ithout #re$enting crimeS an% again!
that there "ere some institutions "hich it "oul% be absur% to abolish because
the remo$al of a #rohibition "oul% also remo$e the contra$ention
The aim of #enal substitutes is not to ren%er all crimes an% oRences
im#ossible! but only to re%uce them to the least #ossible number in any
#articular #hysical an% social en$ironment There are crimes of #iracy to this
%ay! but the use of steam in na$igation has! none the less! been more
eRectual than all the #enal co%es 3ur%ers still occur! though $ery rarely! on
the rail"aysS but it is none the less true that the substitution of the rail"ays
an% tram"ays for the ol% %iligences an% stage coaches has %ecimate%
high"ay robberies! "ith or "ithout mur%er *i$orce %oes not eliminate "ife-
mur%er as a conseIuence of a%ultery! but it %iminishes its freIuency
Similarly! after the #rotection "hich is aRor%e% to aban%one% chil%ren! "e
shall not be able to close the tribunals through the absence of crimes an%
oRences! but it is certain that the su##ly of these "ill be notably %iminishe%
@s for the secon% objection! 2 "as careful to say! in regar% to existing
institutions! that "e must naturally consi%er "hether the e$il arising from
$iolating them or that "hich "oul% be %ue to their su##ression is the greater
.ut my main contention is that by reforming these institutions "e can %o
more to #re$ent crime than by lea$ing them as they ha##en to be! or at most
granting them the fallacious #rotection of one or t"o articles in the #enal
co%e
2 "ill myself a%% a criticism of the theory of #enal substitutes! an% it is that
they are %i>cult of a##lication )e ha$e only to thin& of the immense force of
inertia in the habits! tra%itions an% interests "hich ha$e to be o$ercome
before "e can secure the a##lication! not of all! but of any one of the #enal
substitutes "hich 2 ha$e enumerate% @n% some of these are not sim#le! or
base% on a single #rinci#le! but com#rise an assemblage of co-or%inate%
reforms! li&e the #re$ention of %run&enness! the #rotection of aban%one%
chil%ren! the accessibility of justice! an% so forth
.ut if legislators must ta&e into account the actual con%itions of the #eo#le!
an% a%a#t themsel$es to con%itions of time an% #lace! it is the business of
science to in%icate the goal! ho"e$er %istant an% %i>cult to reach The 'rst
con%ition of attaining legislati$e an% social reforms is that they shoul%
im#ress themsel$es beforehan% on the #ublic conscienceS an% this is not
#ossible if science! in s#ite of transitory %i>culties! %oes not resolutely o#en
u# the roa% "hich has to be tra$elle%! "ithout any com#romise "ith
eclecticism! "hich means for science "hat hybri%ism means for organic life
T"o other objections may be ma%e on the groun% of #rinci#le to "hat has
been sai% The 'rst is that this system of #enal substitutes is only the familiar
#rocess of #re$ention of crime The secon% is that the criminal ex#ert nee%
not concern himself "ith it! since #re$ention is only a Iuestion of goo%
go$ernment! "hich has nothing to %o "ith the stu%y of crimes an%
#unishments
3y ans"er to the secon% objection is that the im#ortance of ta&ing measures
to #re$ent crime has certainly been %"elt u#on! es#ecially from the time of
3ontesIuieu an% .eccaria! but it has been only by "ay of #latonic an%
isolate% %eclaration! "ith no such systematic %e$elo#ment as might ha$e
gi$en them #ractical a##lication! base% on ex#erimental obser$ations
3oreo$er! this #re$ention has al"ays been hel% as subsi%iary to re#ression!
"hereas "e ha$e arri$e% at the #ositi$e conclusion that #re$ention! instea%
of being a mere secon%ary ai%! shoul% henceforth become the #rimary
%efensi$e function of society! since re#ression has but an in'nitesimal
in\uence u#on criminality
Furthermore! it is im#ortant to obser$e the #rofoun% %istinction bet"een
or%inary #re$ention an% #enal substitutesS or in other "or%s! bet"een
#re$ention by #olice an% #re$ention by society The former merely see&s to
#re$ent crime "hen its germ is alrea%y %e$elo#e% an% acti$e! an% it nearly
al"ays em#loys metho%s of %irect coercion! "hich! being themsel$es
re#ressi$e in their character! are often ine>cacious! e$en if they %o not
#ro$o&e a%%itional oRences Social #re$ention! on the other han%! begins "ith
the original sources of crime! attac&ing its biological! #hysical! an% social
factors! by metho%s "hich are "holly in%irect! an% "hich rest u#on the free
#lay of #sychological an% sociological la"s
Science! as "ell as the ma&ing of la"s! has hitherto been too much
in\uence% by a #reference for re#ression! or at least for a%ministrati$e #olice
#re$ention ZZThere ha$e been authoritati$e "or&s an% learne% folios!'' says
Ellero! ZZ"hich %ealt not only "ith #unishment! but also "ith tortureS there
has been none %ealing "ith the #ro$ision of means for #ro$i%ing an
alternati$e to #unishment''
@fter the general obser$ations of 3ontesIuieu! Filangieri! .eccaria! an% more
recently Tissot! on the in\uence of religion! climate! soil! an% the form of
go$ernment! u#on the #enal system rather than the #re$ention of crime! the
authors "ho stu%ie% #re$ention "ith "i%er an% more systematic $ie"s
Aexclu%ing the criminal sociologists "ho ha$e more or less ta&en the #ositi$e
#oint of $ie"B! are .entham! -omagnosi! .arbaco$i! Carmignani! Ellero!
=ombroso! an% a fe" Englishmen! "ho! "ithout ma&ing much of the theory!
ha$e ma%e many #ractical suggestions of #re$enti$e reform .ut e$en these
"riters either con'ne themsel$es to general synthetic consi%erations! li&e
-omagnosi an% Carmignani! or else! entering the %omain of facts! an% e$en
acce#ting the i%ea of social #re$ention! ha$e ma%e too little of those #hysio-
#sychological la"s as the natural factors of crime! "hich alone can furnish a
metho% of regulating human acti$ity @n%! "hen all is sai% an% %one! they
ha$e clung to #unishment as the chief metho% of #re$ention
/ence their teaching an% their #ro#ositions ha$e ha% no "eight "ith
legislators! for these latter ha% not been con$ince%! as only the criminal
sociologist coul% con$ince them! that #unishments are far from ha$ing the
%eterrent force commonly attribute% to them! an% that crime is not the
outcome of free "ill! but rather a natural #henomenon "hich can only
%isa##ear or %iminish "hen its natural factors are eliminate%
The legislators for their #art ha$e not only neglecte% the %e'nite teaching of
these authors "ith more than or%inary insight! but they ha$e also enacte%
"hat are really #enal substitutes in a clumsy an% unscienti'c manner
)e ha$e thus stu%ie% the %ata of criminal statistics in their theoretical an%
#ractical relations "ith criminal sociology! an% come to the conclusion that!
since crime is a natural #henomenon! %etermine% by factors of three &in%s! it
ans"ers on that account to a la" of criminal saturation! "hereby the #hysical
an% social en$ironment! ai%e% by in%i$i%ual ten%encies! here%itary or
acIuire%! an% by occasional im#ulses! necessarily %etermine the extent of
crime in e$ery age an% country! both in Iuantity an% Iuality That is to say!
the criminality of a nation is in\uence% in the natural s#here by the bio-
#sychical con%itions of in%i$i%uals an% their #hysical en$ironment! an%! in the
social s#here! by economic! #olitical! a%ministrati$e an% ci$il con%itions of
la"s! far more than by the #enal co%e
;e$ertheless the execution of #unishment! though it is the less im#ortant
#art of the function of social %efence! "hich shoul% be carrie% out in harmony
"ith the other functions of society! is al"ays the last an% ine$itable auxiliary
@n% this entirely agrees "ith the uni$ersal la" of e$olution! in $irtue of "hich!
ami%st the $ariation of animal an% social organisms! antece%ent forms are
not "holly eliminate%! but continue as the basis of the forms "hich succee%
them So that if the future e$olution of the social a%ministration of %efence
against crime is to consist in the %e$elo#ment of the #rimiti$e forms of %irect
#hysical coercion into the higher forms of in%irect #sychical %isci#line of
human acti$ity! this "ill not im#ly that the #rimiti$e forms must entirely
%isa##ear! es#ecially for the gra$est crimes! "hich! in the biological an%
#sychological con%itions of those "ho commit them! ta&e us bac& to the
#rimiti$e e#ochs an% forms of in%i$i%ual an% social $iolence
2 en% "ith a mo%i'cation of an ol% com#arison "hich has been much abuse%
Crime has been com#are% to an im#etuous torrent "hich ought to be
enclose% bet"een the %y&es of #unishment! lest ci$ilise% society shoul% be
submerge% 2 %o not %eny that #unishments are the %y&es of crime! but 2
assert that they are %y&es of no great strength or utility @ll nations &no" by
sa% an% chronic ex#erience that their %y&es cannot sa$e them from
inun%ationsS an% so our statistics teach us that #unishments ha$e but an
in'nitesimal #o"er against the force of criminality! "hen its germs are fully
%e$elo#e%
.ut as "e can best #rotect oursel$es against inun%ations by obeying the la"s
of hy%rostatics an% hy%ro%ynamics! by timbering the ban&s near the source
of the stream! an% by %ue rectilineation or exca$ation along its course an%
near its mouth! so! in or%er to %efen% oursel$es against crimes! it is best to
obser$e the la"s of #sychology an% sociology! an% to a$ail oursel$es of social
substitutes! "hich are far more e>cacious than "hole arsenals of re#ressi$e
measures
C/@PTE- 222
P-@CT2C@= -EF:-3S
The %ata of criminal anthro#ology an% statistics! an% the #ositi$e theory of
res#onsibility "hich \o"s from them! although they ha$e been systematise%
only by the #ositi$e school! are ne$ertheless too constantly in e$i%ence not to
ha$e ma%e their "ay into courts an% #arliaments
2 ha$e alrea%y s#o&en of #enal juris#ru%ence in its relations "ith criminal
sociology! an% may no" cite a fe" exam#les of the more or less %irect an%
a$o"e% in\uence of the ne" %ata on #enal legislation
The legislators of to-%ay! $aguely im#resse% by statistical an% biological!
ethnogra#hical an% anthro#ological %ata! an% still imbue% "ith the ol%
#reju%ice of social an% #olitical arti'ciality! "ere at 'rst hurrie% into a regular
mania for legislation! un%er "hich e$ery ne"ly obser$e% social #henomenon
seeme% to %eman% a s#ecial la"! regulation! or article in the #enal co%e
Then! as S#encer has sai% in one of his most brilliant essays! the citi9en 'n%s
himself in an inextricable net"or& of la"s! %ecrees! regulations an% co%es!
"hich surroun% him! su##ort him! fetter an% bin% him! e$en before his birth
an% after his %eath For those "hom 3 .or%ier calls the gar%eners an%
trussma&ers of society! forgetting the natural character of social #henomena!
#icture society as so much #aste! to "hich the coo& may gi$e any form he
#leases! "hether #ie-crust! %um#ling! or tart
/ence "e see on all si%es! si%e by si%e "ith %ogma in the classical sciences
of la"! economy! an% #olitics! em#iricism in the la"s themsel$es @n% that is
"hy the #ractical %efects an% constant im#otence of re#ression in #enal
justice are the most eloIuent arguments of the ex#erimental school! "hich
exten%s an% strengthens its o"n theoretical in%uctions by the #ractical
reforms "hich it suggests
@ 'rst exam#le of the in\uence more %irectly exercise% by the ne" i%eas in
#enal legislation is furnishe% by the #ro#osal alrea%y realise% in the #enal
la"s of /ollan%! 2taly! ]c! of t"o #arallel systems of #unishment by %etention
[one for the gra$er an% more %angerous crimes! an% the other! ZZsim#le
%etention!'' or custo%ia honesta AZZas a 'rst-class mis%emeanant''B! for
contra$entions! in$oluntary oRences! an% crimes not ins#ire% by the baser
#assions
Similarly! the enumeration containe% in certain co%es! as in S#ain! an% in the
ol% 3ancini %raft of a #enal co%e in 2taly! of the main aggra$ating an%
extenuating circumstances common to all crimes an% oRences! such as the
antece%ents of the accuse%! $enial or inexcusable #assion! re#entance an%
confession of a crime! extent of injury or the li&e! is only an elementary an%
em#iric form of the biological an% #sychological classi'cation of criminals
Thus also the foun%ation of asylums for the %etention of lunatic criminals! in
s#ite of their being acIuitte% of moral res#onsibilityS the more an% more
$igorous! but often too em#irical measures against the #rogressi$e increase
of reci%i$ismS the #ro#ose% re#ressi$e measures as alternati$es to short
terms of %etentionS the reaction against the exaggerations of cellular
con'nement! "hich 2 regar% as one of the aberrations of the nineteenth
century! are all manifest #roofs of the more or less a$o"e% an% logical
in\uence of the %ata of criminal biology an% sociology on contem#orary #enal
legislation
These #ractical reforms! "hich! "hen grafte% on the ol% trun& of the classical
theories of crime an% #unishment! are mere arbitrary an% mis#lace%
ex#e%ients! really re#resent! "hen they are logically co-or%inate% an%
com#lete%! the ne" system of social %efence against crime! "hich is base%
on the scienti'c %ata an% in%uctions of the #ositi$e school! an% "hich it is
therefore necessary for us to trace out from its foun%ations
2
2n the 'rst #lace! "hilst the #ositi$e theories largely re%uce the #ractical
im#ortance of the #enal co%e! yet they %o more to increase the im#ortance of
the rules of #enal #roce%ure! "hich are inten%e% to gi$e #ractical an% %aily
eRect to #enal measures! for the %efence of society against criminals For! as
2 maintaine% in the 2talian Parliament! if the #enal co%e is a co%e for e$il-
%oers! that of #enal #roce%ure is a co%e for honest #eo#le! "ho are #lace% on
their trial but not yet foun% guilty
This is all the more true because! if it is #ossible to ha$e #enal co%es "hose
machinery of #sychological coercion is #lante% on a #latonic #latform of
#enitentiary systems "ritten out fair in their symmetrical clauses! but still
non-existent! as is the case in 2taly! this is not #ossible in regar% to #enal
#roce%ure The regulations of the co%e of ZZinstruction'' must of necessity be
carrie% out by a ju%icial routine The #enal co%e may remain a %ea% letter! as!
for instance! "hen it says that #unishment by %etention is to be in\icte% in
#risons constructe% "ith cellsS for! ha##ily! the cells necessary in 2taly for 'fty
or sixty thousan% #risoners Aor in France for thirty or forty thousan%B are too
ex#ensi$e to a%mit of the obser$ance of these articles of the #enal co%e[
"hich ne$ertheless ha$e cost so many aca%emic %iscussions as to the best
#enitentiary system? ZZ@uburn!'' ZZPhila%el#hian!'' ZZ2rish!'' or ZZ#rogressi$e''
2n the organisation of justice! on the other han%! e$ery legal regulation has its
imme%iate a##lication! an% therefore reforms of #roce%ure #ro%uce
imme%iate an% $isible results
2t may be a%%e% that! if the slight %eterrent in\uence "hich it is #ossible for
#unishment to exercise %e#en%s! "ith its a%a#tation to $arious ty#es of
criminals! on the certitu%e an% #rom#titu%e of its a##lication! the others
%e#en% #recisely an% solely on the organisation of the #olice! an% of #enal
#roce%ure
Passing o$er s#ecial an% technical reforms "hich e$en the classical ex#erts in
crime %eman% in the systems of #roce%ure! an% often rather on behalf of the
criminals than on behalf of society! "e may connect the #ositi$e inno$ations
in ju%icial #roce%ure "ith these t"o general #rinci#les?[A1B the eIual
recognition of the rights an% guarantees of the #risoner to be trie% an% of the
society "hich tries himS an% ADB the legal sentence! "hereof the object is not
to %e'ne the in%eterminable moral cul#ability of the #risoner! nor the
im#ersonal a##licability of an article in the #enal co%e to the crime un%er
consi%erationS but the a##lication of the la" "hich is most a##ro#riate to the
#er#etrator of the crime! accor%ing to his more or less anti- social
characteristics! both #hysiological an% #sychological
From .eccaria on"ar%! #enal la" %e$elo#e% by reaction against the excessi$e
an% arbitrary se$erity of the 3i%%le @ges[a reaction "hich le% to a
#rogressi$e %ecrease of #unishments Similarly o>cial #enal #roce%ure in the
nineteenth century has been! an% continues to be! a reaction against the
me%iae$al abuses of the inIuisitorial system! in the sense of a #rogressi$e
increase of in%i$i%ual guarantees against the %omination of society
@s "e consi%ere% it necessary in the interests of social self- %efence! in the
case of criminal la"! to combat the in%i$i%ualist excesses of the classical
school! so in regar% to #enal #roce%ure! "hilst a%mitting the irre$ocable
guarantees of in%i$i%ual liberty! secure% un%er the ol% system! "e thin& it
necessary to restore the eIuilibrium bet"een in%i$i%ual an% social rights!
"hich has been %isturbe% by the many exaggerations of the classical
theories! as "e "ill no" #rocee% to sho" by a fe" exam#les
The #resum#tion of innocence! an% there"ith the more general rule! ZZin
%ubio #ro reo!'' is certainly base% on an actual truth! an% is %oubtless
obligatory %uring the #rogress of the trial <n%etecte% criminals are
fortunately a $ery small minority as com#are% "ith honest #eo#leS an% "e
must conseIuently regar% e$ery man "ho is #lace% on his trial as innocent
until the contrary has been #ro$e%
.ut "hen #roof to the contrary is e$i%ent! as! for instance! in the case of a
\agrant crime! or of confession con'rme% by other elements in the trial! it
seems 't that the #resum#tion shoul% cease in $ie" of absolute factS an%
es#ecially "hen "e ha$e to %o "ith habitual criminals
E$en the criminals of this class "hom 2 ha$e Iuestione% recognise a
#resum#tion of the o##osite &in% ZZThey ha$e con$icte% me!'' sai% an
habitual thief! ZZbecause they &ne" 2 might ha$e %one it! "ithout any #roofS
an% they "ere in the right Pou "ill ne$er be con$icte%! because you ne$er
stoleS an% if "e ha##en to be innocent once in a "ay! that must be set
against the other times "hen "e are not %isco$ere%'' @n% the ironical smile
of se$eral of these #risoners! con%emne% on circumstantial e$i%ence!
remin%e% me of a #ro$ision "hich "as once #ro#ose% in the 2talian #enal
co%e! un%er "hich a #erson sur#rise% in the attem#t to commit a crime! if it
"as not &no"n "hat #recise form his crime "oul% ha$e ta&en! "as to be
foun% guilty of a less serious oRence This might be goo% for an occasional
criminal! or a criminal of #assion! but "oul% be absur% an% %angerous for
habitual criminals an% ol% oRen%ers
The exaggerations of the #resum#tion ZZin %ubio #ro reo'' are %ue to a sort of
mummi'cation an% %egeneracy of the legal maxims! "hereby #ro#ositions
base% u#on obser$ation an% generalisation from existing facts continue in
force an% are mechanically a##lie% after the facts ha$e change% or cease% to
exist
)hat reason can there be for exten%ing #ro$isional free%om! #en%ing an
a##eal! to one "ho has alrea%y been foun% guilty an% liable to #unishment
for a crime or oRence! un%er sentence of a court of 'rst instanceO To #resume
the innocence of e$ery one %uring the 'rst trial is reasonableS but to #ersist
in a #resum#tion "hich has been %estroye% by facts! after a 'rst
con%emnation! "oul% be incom#rehensible if it "ere not a manifestly
exaggerate% outcome of classical an% in%i$i%ualist theories! "hich can only
see a ZZ$ictim of authority'' in e$ery accuse% #erson! an% in e$ery
con%emne% #erson also
@nother #oint is that of acIuittal in case of an eIuality of $otes! es#ecially
"here born an% habitual criminals are concerne% 2 thin& it "oul% be much
more reasonable to restore the $er%ict of ZZnot #ro$en!'' "hich the -omans
a%mitte% un%er the form of ZZnon liIuet!'' as an alternati$e to ZZabsol$o'' an%
ZZcon%emno!'' an% "hich may be %eli$ere% by juries in Scotlan% E$ery one
"ho has been #ut on his trial is entitle% to ha$e his innocence %eclare%! if it
has been actually #ro$e% .ut if the #roofs remain incom#lete! his only right
is not to be con%emne%! since his cul#ability has not been #ro$e% .ut it is
not the %uty of society to %eclare him absolutely innocent! "hen sus#icious
circumstances remain 2n this case the only logical an% just $er%ict is one of
ZZnot #ro$en'' Such a $er%ict "oul% obliterate the sha%o" of %oubt "hich
rests on #ersons "ho ha$e been acIuitte%! by reason of the i%entical $er%icts
in cases of #ro$e% innocence an% ina%eIuacy of #roof! an% on the other han%
it "oul% a$oi% the ten%ency to com#romise! un%er "hich ju%ges an% juries! in
#lace of acIuitting "hen the #roof is insu>cient! sometimes #refer to con$ict!
but ma&e the #unishment lighter
@nother case of exaggeration in the #resum#tion of innocence is aRor%e% by
the regulations as to contra%ictory or irregular $er%icts! "hich may be
correcte% only "hen there has been a con$ictionS "hilst if the error has le% to
the acIuittal of an accuse% #erson! it cannot be #ut right The in\uence of
the in%i$i%ualist an% classical school is here manifest! for! as 3 3ajno says!
ZZthe justice of sentences rests as much on just con%emnations as u#on just
acIuittals'' 2f the in%i$i%ual has a right to claim that he shall not be
con%emne% through the mista&e or ignorance of his ju%ges! society also has
the right to %eman% that those "hose acIuittal is eIually the result of
mista&e or ignorance shall not be allo"e% to go free
:n the same groun% of eIuilibrium bet"een the rights of the in%i$i%ual an%
the rights of society! "hich the #ositi$e school aims at restoring! something
must be sai% as to the regulation by "hich! if the a##eal is brought by a
con%emne% #erson! the #unishment cannot be increase% :ne classical
ex#ert in an o>cial #osition "oul% not e$en gi$e the right to a##eal at all
;o" if a##eal is allo"e% for the #ur#ose of correcting #ossible mista&es on
the #art of the original ju%ges! "hy must "e allo" this correction in
mitigation! an% not in increase of #unishmentO @n% to this #ractical assurance
of the con%emne% #erson that he has nothing to fear from a secon% trial!
"hich seems to ha$e been gi$en to him for the sole #ur#ose of encouraging
him to abuse his #o"er! since a##eals are too often a mere %ilatory #retext!
there is a #en%ant in the right of the #ublic #rosecutor to %eman% a re-
hearing! but only ZZin the interest of the la"! an% "ithout #reju%ice to the
#erson acIuitte%''
@ last instance of the same &in% of #rotecti$e regulation for the #rotection of
e$il-%oers is to be foun% in the ne" trials "hich are #ermitte% only in cases
"here there has been a con%emnation! an% that on arbitrary an% su#er'cial
groun%s 3ost of the classical commentators on #roce%ure %o not %ream of
the #ossibility of re$ision in the case of acIuittals! an% yet! as 3ajno justly
says! ZZe$en if he has #ro'te% by false "itness! forge% %ocuments!
intimi%ation or corru#tion of a ju%ge! or any other oRence! the acIuitte%
#erson calmly enjoys his boast! an% can e$en #lume himself on his o"n share
in the business "ithout fear of being #ut on his trial again'' The @ustrian an%
German co%es of #roce%ure a%mit re$ision in cases of acIuittalS an% the
#ositi$e rule in this connection ought to be that a case shoul% be re-hear%
"hen the sentence of con%emnation or acIuittal is e$i%ently erroneous
From the same #rinci#le of eIuality bet"een the guarantees of the in%i$i%ual
criminal an% of honest society "e infer the necessity of greater strictness in
the in%emni'cation of the $ictims of crime For the #latonic %amages no"
a%%e% to all sorts of sentences! but nearly al"ays ineRectual! "e belie$e that
a strict obligation ought to be substitute%! the o#eration of "hich shoul% be
su#erinten%e% by the State! in the same "ay as the other conseIuence of the
crime! "hich is calle% the #unishment 2 "ill return to this "hen 2 trace the
outline of the #ositi$e system of social %efence against criminals
The #ositi$e school! #recisely because it aims at an eIuilibrium bet"een
in%i$i%ual an% social rights! is not content "ith ta&ing the #art of society
against the in%i$i%ual 2t also ta&es the #art of the in%i$i%ual against society
2n the 'rst #lace! the $ery reforms "hich "e #ro#ose for the in%emni'cation
of the $ictims of crime! regar%e% as a social function! as "ell as the o#eration
of the #unishment! ha$e an in%i$i%ualist character The in%i$i%ualism of the
classical school "as not e$en com#lete as a matter of factS for the
guarantees "hich it #ro#ose% too& account of the in%i$i%ual criminal only!
an% %i% not touch his $ictims! "ho are also in%i$i%uals! an% far more "orthy
of sym#athy an% #rotection
.ut! beyon% this! "e may #oint to three reforms as an instance of the #ositi$e
an% reasonable guarantees of the in%i$i%ual against the abuse or the %efects
of social authority :f these reforms t"o ha$e been #ut for"ar% by the
classical school also! but! li&e criminal lunatic asylums! alternati$es for short
terms of im#risonment! an% so on! they ha$e generally remaine% ino#erati$e!
for they are not in harmony "ith the bul& of tra%itional theory! an% only in a
#ositi$e system ha$e they any organic an% e>cacious connection "ith the
%ata of criminal sociology 2 refer to the exercise of #o#ular o#inion! the
correction of ju%icial mista&es! an% the transfer of sun%ry #unishable oRences
to the category of ci$il contra$entions
The institution of a 3inistry of Qustice corres#on%s to the %eman%s of general
sociology! "hich exacts %i$ision of labour e$en in collecti$e organisms! an% to
those of criminal sociology! "hich reIuires a s#ecial an% %istinct organ for the
social function of %efence against crime 2n%ee% it has become in%is#ensable
as a necessary ju%icial organ! e$en in nations li&e Englan% "hich ha$e not yet
formally establishe% it So that! far from confoun%ing the Public Prosecutor
"ith the ju%icial bo%y! "e see the necessity of gi$ing to this o>ce a more
ele$ate% character an% a %istinct #ersonality! "ith am#ler guarantees of
in%e#en%ence of the executi$e #o"er
;e$ertheless the action of the 3inistry of Qustice! as no" commonly
organise%! may be ina%eIuate for the #rotection of the $ictims of crime!
either in%irectly through the insu>cient number of its functionaries! or
%irectly! through the functional %efect insiste% on by 3 Gneist! ZZ#arty s#irit
or #reju%ice in fa$our of the go$erning #o"ers'' The latter! in%ee%!
not"ithstan%ing 3 Glaser's objection that go$ernment #ressure is
im#ossible! ha$e no nee% to gi$e s#ecial instructions! of a more or less
com#romising character! in or%er to exercise a s#ecial in\uence in any
#articular case There is no necessity for anything beyon% the conser$ati$e
s#irit natural to e$ery institution of the State! or the #rinci#le of authority
"hich is a s#ecial form of it! a#art from the less res#ectable moti$es of
intereste% subser$ience to such as are in o>ce an% %is#ense #romotion
/ence it "ill be useful! in initiating criminal #rocee%ings! to a%% to the action
of a Public Prosecutor Abut not to substitute for himB the action of #ri$ate
#ersons
Criminal #rocee%ings by citi9ens may ta&e t"o forms! accor%ing as they are
#ut in o#eration only by the injure% #erson or by any in%i$i%ual
The 'rst mo%e! alrea%y allo"e% in e$ery ci$ilise% nation! nee%s amen%ment
in $arious "ays! es#ecially in regar% to the subor%ination of the #enal action
to the #laint of the injure% #erson! "hich ought to be restraine%! an% e$en
abolishe% 2n fact! "hereas this right has hitherto been regulate% by la" only
in $ie" of the legal an% material gra$ity of the oRence! it shoul% in future be
ma%e to %e#en% on the #er$ersity of the oRen%erS for society has a much
greater interest in %efen%ing itself against the author of a slight oRence if he
is a born criminal or a criminal lunatic! than in %efen%ing itself against the
author of a more serious crime! if he is an occasional criminal or a criminal of
#assion @n% the necessity of bringing a #ri$ate action in regar% to certain
oRences is only a source of abuses! an% of %emoralising bargains bet"een
oRen%ers an% injure% #ersons
:n the other han%! this #rosecution by a citi9en "ho has been injure% by a
crime or an oRence ought to ha$e more e>cacious guarantees! either for the
exercise of the rights of the injure% #erson! or against the #ossible neglect or
abuse of the Public Prosecutor 2f! in%ee%! he is oblige% to ta&e u# e$ery
charge an% action! he is also Ain 2taly an% France! but not in @ustria or
Germany! for instanceB the only authority as to #enal actions! an%
conseIuently as to #enal ju%gments
2n 2taly! out of D47!0GE cases "hich came before the Public Prosecutor in
1EE0! six #er cent! or 14!0JE! "ere ZZentere% on the recor%s!'' or! in other
"or%s! they "ere not follo"e% u#S an% in 1EE0! out of a total of D11!D10! the
number of un#rosecute% cases "as D1!0E4! or ten #er cent That is! the
number ha% almost %ouble% in ten years
2n France the annual a$erage of #laints! charges! an% trials "ith "hich the
Public Prosecutor "as concerne% stoo% at 117!1E1 in the years 1EG1-JS at
G11!010 in 1E14-E0S an% at 7J0!G10 in 1EE1 @n% the cases not #rocee%e%
"ith "ere G7!47G! or thirty #er cent! in 1EG1-JS 1E1!J11! or forty-eight #er
cent! in 1E14-E0S an% DG0!041! or 'fty-t"o #er cent! in 1EE1 That is to say!
their actual an% relati$e numbers mere nearly %ouble% in 'fty years
2s it #ossible that in ten! or e$en in 'fty years! the moral con%itions of a
nation! an% its inclination to bring criminal charges! shoul% be so mo%i'e%
that the number of cases %e$oi% of foun%ation shoul% ha$e been almost
%ouble%O 2t is certain that in %iRerent nations an% %iRerent #ro$inces there
are $arying %egrees of rea%iness to bring charges against la"brea&ers rather
than to ta&e #ersonal $engeance .ut in one an% the same nation this
$in%icti$e s#irit an% this rea%iness to bring charges cannot $ary so greatly
an% ra#i%ly! es#ecially "ithin ten years! as in 2talyS for the #ersistence of
#o#ular sentiment is a "ell- &no"n fact 2t is rather in the %is#osition of the
functionaries of the 3inistry of Qustice! "hich is far more $ariable! that "e
must loo& for an ex#lanation of this fact! "hich is also accounte% for by the
ten%ency to %iminish the statistical recor%s of crime
;o"! "hy must the citi9en "ho lo%ges a com#laint of "hat he consi%ers a
crime or oRence submit to the %ecision of the Public Prosecutor! "ho has
allo"e% his action to %ro#O This consi%eration has le% to the subsi%iary #enal
action! alrea%y allo"e% in Germany an% @ustria! an% intro%uce% in the %raft
co%es of #roce%ure in /ungary! .elgium! an% France! "hich is a genuine
guarantee of the in%i$i%ual as against the social authority )e must not!
ho"e$er! %ecei$e oursel$es as to the e>cacy or freIuency of its o#eration!
es#ecially in the =atin nations! "hich ha$e none too much in%i$i%ual
initiati$e
The secon% form of #ri$ate #rosecution is that of the ZZ#o#ular #uniti$e
action!'' "hich existe% in the -oman #enal la"["hich! it may be sai% in
#assing! is not so insigni'cant as the classical school has su##ose% The
statement of 3 Carrara! too often re#eate%! that ZZThe -omans! "ho "ere
giants in ci$il la"! are #igmies in #enal la"!'' is not in my o#inion correct 2t is
true that the -oman #enal la" "as not organise% in a #hiloso#hical systemS
but it exhibits throughout the "on%erfully #ractical ju%gment of the -oman
jurisconsultsS an% in%ee% one cannot see "hy they shoul% ha$e lost this
sense "hen %ealing "ith crimes an% #unishments :n the other han%! 2 am
incline% to thin& that the im#ortance of the -oman ci$il la" has been
exaggerate%! an% that the s#irit of the cor#us juris s#rings from social an%
economic con%itions so %iRerent from our o"n that "e can no longer feel
boun% to submit to its tyranny The #enal la" of the -omans! ho"e$er!
contains se$eral maxims base% on unIuestionable common sense! "hich
%eser$e to be rescue% from the obli$ion to "hich they ha$e been con%emne%
by the %ogmatism of the classical school Exam#les of these are the #o#ular
#uniti$e actionS the %istinction bet"een %olus bonus an% %olus malus! "hich
belongs to the theory of moti$esS the stress lai% u#on intentions rather than
u#on their actual outcomeS the la" of exce#tio $eritatis in cases of slan%er!
"hich un%er the #harisaism of the classical theory ser$es only to gi$e
immunity to &na$esS the #enalty of t"ofol% or threefol% restitution for theft! in
#lace of a fe" %ays or "ee&s in #risonS the con%emnation of the most
har%ene% criminals to the mines! instea% of #ro$i%ing them "ith cells! as
comfortable as they are ineRectual[a#art from the consi%eration that the
're%am# in mines an% the unhealthiness of #enal settlements "oul% be less
mischie$ous if their $ictims "ere the most %angerous criminals rather than
honest miners an% husban%men
To return to the #o#ular #enal action! it is so commonly a%$ocate%! e$en by
the classical school! that it is necessary to say another "or% on the subject
Gneist! from his s#ecial #oint of $ie"! #ro#ose% that this action shoul% be
intro%uce% into #enal #roce%ure! as against electoral an% #ress oRences!
oRences against the la" of #ublic meetings an% associations! an% the abuse
of #ublic authority .ut 2 consi%er that this action "oul% be a necessary
guarantee! in the case of all crimes an% oRences! for a reasonable an%
%e'nite a%justment of the rights of the in%i$i%ual an% of society
@nother reform! ten%ing to a more eRecti$e guarantee of in%i$i%ual rights! is
the re$ision of ju%icial errors in the interests of all "ho are unjustly
con%emne% or #rosecute% Such a reform has been a%$ocate% also by se$eral
members of the classical schoolS but it seeme% only too li&ely to remain "ith
them a mere bene$olent ex#ression of o#inionS for it can only be carrie% into
eRect by curtailing im#risonment! an% by a more freIuent an% stringent
in\iction of 'nes! as a%$ocate% by the #ositi$e school
Sanctione% in some s#ecial cases! as an exce#tional measure[as! for
instance! in the last century by the Parliament of Toulouse! an% in our age by
the English Parliament[com#ensation for ju%icial errors "as ren%ere%
necessary in France at the en% of the eighteenth century! after a series of
unjust con%emnations! e$en %eath sentences! "hich le% ,oltaire an% .eccaria
to %eman% the abolition of ca#ital #unishment 2n 11E1 the Society of @rt an%
=iterature at Chalonssur-3arne oRere% a #ri9e for an essay on the subject!
an% a"ar%e% it to .rissot %e )ar$ille! for his "or&! ZZ=e Sang 2nnocent
,enge'' 2n the recor%s of the Etats Generaux there "ere many $otes in fa$our
of this reform! "hich =ouis N,2 cause% to be intro%uce% on 3ay E! 11EE 2n
1100 *u#ort brought in a measure in the Constituent @ssemblyS but it "as
rejecte% after a short %iscussion in February! 1101! %uring "hich the same
#ractical objections "ere urge% as ha$e been re#eate% u# to the #resent
time ;e$ertheless! the Con$ention %ecree% s#ecial in%emnities! as! for
instance a thousan% francs in 110G for one .usset! ZZfor arbitrary
im#risonment an% #rosecution'' 2n 1EDG the abo$e-name% Society at
Chalonssur- 3arne #ro#ose% the same subject for an essayS an% it has been
the object of sun%ry #ro#osals! all rejecte%! as in 1E41 %uring the %iscussion
on criminal a##eals! on amen%ments mo$e% by Qules Fa$re! -ichar%! an%
:lli$ierS an% again in 1EEG by *e#ute Pieyre! an% in 1E00 by *e#ute -einach
This reform has been a%$ocate% by ;ec&er! amongst other "riters! in his
memoir on ZZFinancial @%ministration in France!'' an% by Pastoret! ,oltaire!
.entham! 3erlin! =egra$eren%! /elie! Tissot! an% more com#rehensi$ely by
3arsangy in his ZZ-eform of the Criminal =a"'' A1E47B 3arsangy a%$ocate%
many other #ractical reforms "hich ha$e since been a%o#te%! in substitution
for the objectionable short terms of im#risonment 3ore recently the subject
has been treate% in France by the magistrates .ernar%! Pascau%! ;icolas!
Giacobbi! an% by the @ttorney-Generals 3olines! Qour%an! /oussar%! *u#ry!
.ujar%! in their inaugural a%%resses
2n 2taly there "as a notable #rece%ent for this reform in the Treasury of Fines!
establishe% for Tuscany in 11E4! an% for the &ing%om of the T"o Sicilies in the
#enal co%e of 1E10! for the #ur#ose of creating a fun% for com#ensation in
cases of ju%icial error 2n 1EE4 *e#uty Pa$esi brought in a measure "hich "as
not %iscusse%S an% this in%emni'cation! "hich ha% alrea%y been #ro#ose% in
1E1G by *e Falco! &ee#er of the seals! in his %raft of an 2talian #enal co%e!
"as not inclu%e% in subseIuent .ills! mainly on account of the 'nancial
%i>culties @mongst "riters on criminology! it "as a%$ocate% in 2taly by
Carrara! Pessina! an% .rusaS in Germany by Geyer an% Sch"ar9eS in .elgium
by Prins an% others! an% more recently by 3 Garofalo! in his re#ort to the
thir% ;ational Congress on =a"! at Florence! in Se#tember! 1E01
@mongst existing la"s! in%emni'cation for ju%icial errors! "hether limite% to
cases in "hich the innocence of con%emne% #ersons can be #ro$e%! or
exten%e% to #ersons "rongfully #rosecute%! is inclu%e% in the #enal co%es of
/ungary an% 3exico! an% by s#ecial la"s in Portugal A1EE7B! S"e%en A1EE4B!
*enmar& A1EEEB! an% es#ecially in S"it9erlan%! in the cantons of Fribourg!
,au%! ;euchatel! Gene$a! .ale! an% .erne
The legal #rinci#le that the State ought to in%emnify material an% moral
injury in\icte% by its functionaries! through malice or negligence! on a citi9en
"ho has %one nothing to subject himself to #rosecution or con%emnation!
cannot be seriously conteste% .ut the "hole %i>culty is re%uce% to %eci%ing
in "hat cases the right to in%emni'cation ought to be recognise%! an% then to
#ro$i%ing a fun% out of "hich the State can %ischarge this %uty
For the latter #ur#ose it "oul% be necessary to inclu%e an a%eIuate sum in
the .u%get This "as %one in .a$aria! in 1EEE! by setting a#art J!000 mar&s
annuallyS an% the 'rst "ho #ro'te% by this #ro$ision recei$e% a #ension of
G00 mar&s #er annum! after being ren%ere% inca#able of "or& by se$en
years' im#risonment for a crime "hich he ha% not committe% .ut if the
#olicy of retrenchment im#ose% on the Euro#ean States by their insane
military ex#en%iture an% their chronic "ars #re$ents the carrying out of this
#ro#osal! there is the 2talian #rece%ent of the Treasury of Fines! "hich! "ith
the 'nes in\icte%! or "hich ought to be in\icte% on con$icte% #ersons! an%
the #ro%uct of #rison labour! "oul% #ro$i%e the necessary amount for the
in%emnities "hich the State ought to #ay to innocent #ersons "ho ha$e been
con%emne% or #rosecute%! as "ell as to the $ictims of oRences
@s for the cases in "hich a right to in%emni'cation for ju%icial errors ought to
be ac&no"le%ge%! it seems to me e$i%ent in the 'rst #lace that "e must
inclu%e those of con$icte% #ersons foun% to be innocent on a re$ision of the
sentence @mongst #ersons "rongfully #rosecute%! 2 thin& an in%emnity is
%ue to those "ho ha$e been acIuitte% because their action "as neither a
crime nor an oRence! or because they ha% no #art in the action A"hence also
follo"s the necessity of $er%icts of ;ot Pro$en! so as to %istinguish cases of
acIuittal on the groun% of #ro$e% innocenceB[al"ays #ro$i%e% that the
#rosecute% #ersons ha$e not gi$en a reasonable #retext for their trial by their
o"n con%uct! or their #re$ious rela#se! or their habitual criminality
The thir% #ro#osition of the #ositi$e school in regar% to in%i$i%ual guarantees!
"hich "as also a%$ance% by 3 Puglia! is connecte% "ith reform of the #enal
co%e! an% es#ecially "ith the more eRectual in%emni'cation of the $ictims of
crime The object is to #rune the long an% constantly increasing list of crimes!
oRences! an% contra$entions of all acts "hich result in slight injury!
committe% by occasional oRen%ers! or ZZ#seu%o- criminals''[that is! by
normal #ersons acting merely "ith negligence or im#ru%ence
2n these cases the #ersonal an% social injury is not cause% maliciously! an%
the agent is not %angerous! so that im#risonment is more than e$er
ina##ro#riate! unjust! an% e$en %angerous in its conseIuences *ee%s of this
&in% ought to be eliminate% from the #enal co%e! an% to be regar%e% merely
as ci$il oRences! as S23P=E theft "as by the -omansS for a strict
in%emni'cation "ill be for the authors of these %ee%s a more eRectual an% at
the same time a less %emoralising an% %angerous $in%ication of the la" than
the grotesIue con%emnation to a fe" %ays or "ee&s in #rison
2t "ill be un%erstoo% that the classical theory of absolute an% eternal justice
cannot concern itself "ith these tri\es! "hich! ne$ertheless! constitute t"o-
thir%s of our %aily social an% ju%icial existenceS for! accor%ing to this theory!
there is al"ays an oRence to be $isite% "ith a #ro#ortionate #unishment! just
as "ith a mur%er! or a high"ay robbery! or a slan%erous "or% .ut for the
#ositi$e school! "hich realises the actual an% #ractical con%itions of social
an% #uniti$e justice! there is on the other han% an e$i%ent nee% of relie$ing
the co%es! tribunals! an% #risons from these microbes of the criminal "orl%!
by exclu%ing all #unishments by im#risonment for "hat ,enturi an% Turati
ha##ily %escribe as the atomic #articles of crime! an% by relaxing in some
%egree that monstrous net"or& of #rohibitions an% #unishments "hich is so
in\exible for #etty transgressors an% oRen%ers! but so elastic for serious e$il-
%oers
22
The reforms "hich "e #ro#ose in #uniti$e la" are base% on the fun%amental
#rinci#le alrea%y establishe% on the %ata of anthro#ology an% criminal
statistics
2f the ethical i%ea of #unishment as a retribution for crime be exclu%e% from
the re#ressi$e function of society! an% if "e regar% this function sim#ly as a
%efensi$e #o"er acting through la"! #enal justice can no longer be sIuare%
"ith a minute com#utation of the moral res#onsibility or cul#ability of the
criminal 2t can ha$e no other en% than to #ro$e! 'rst! that the #erson un%er
trial is the author of the crime! an%! then! to "hich ty#e of criminals he
belongs! an%! as a conseIuence! "hat %egree of anti-social %e#ra$ity an% re-
a%a#tability is in%icate% by his #hysical an% mental Iualities
The 'rst an% fun%amental inIuiry in e$ery criminal trial "ill al"ays be the
$eri'cation of the crime an% the i%enti'cation of the criminal