the time.'' If he is cured before the date fixed, he must still
remain in the hospital; and he must go when the time is up, cured
or not.

Semal reached the same conclusion in his paper on "conditional
liberation,'' at the second Congress of Criminal Anthropology.

And this notion of segregation for unfixed periods, put forward in
1867 for incorrigible criminals by the Swiss Prison Reform
Association, has already made great progress, especially in
England and America, since the Prison Congress of London (1872)
discussed this very question of indefinite sentences, which the
National Prison Congress at Cincinnati had approved in the
preceding year.

In 1880 M. Garofalo and I both spoke in favour of
indefinite segregation, though only for incorrigible
recidivists; and the same idea was strikingly supported in M. Van
Hamel's speech at the Prison Congress at Rome (1885). The
eloquent criminal expert of Amsterdam, speaking "on the
discretion which should be left to the judge in awarding
punishment,'' made a primary distinction between habitual
criminals, incorrigible and corrigible, and occasional criminals.
"For the first group, perpetual imprisonment should depend on
certain conditions fixed by law, and on the decision of the judge
after a further inquiry. For the second group, the application of
an undefined punishment after the completion of the first sentence
will have to depend in the graver cases on the conditions laid
down by law, and in less serious cases upon the same conditions
together with the decision of the judge, who will always decide
from time to time, after further inquiry, as to the necessity for
prolonging the imprisonment. For the third group, the judge will
have to be limited by law, in deciding the punishment, by special
maximums, and with a general minimum.''

The Prison Congress of Rome naturally did not accept the principle
of punishment for unfixed periods. More than that, advancing on
the classical tendency, it decided that "the law should fix the
maximum of punishment beyond which the judge may not in any case
go; and also the minimum, which however may be diminished when the
judge considers that the crime was accompanied by extenuating
circumstances not foreseen by the law.''

It is only of late years, in consequence of the reaction
against short terms of imprisonment, that the principle of
segregation for unfixed periods has been developed and accepted by
various writers, in spite of the feeble objections of Tallack,
Wahlberg, Lamezan, von Jagemann, &c.

Apart, also, from theoretical discussion, this principle has been
applied in a significant manner in the United States, by means of
the "indeterminate sentence.'' The House of Correction at Elmira
(New York) for young criminals carries into effect, with special
regulations of physical and moral hygiene, the indeterminate
imprisonment of young prisoners; and this principle, approved by
the Prison Congresses at Atlanta (1887), Buffalo (1888), and
Nashville (1889), has been applied also in the New York prisons,
and in the States of Massachusetts, Pennsylvania, Minnesota, and
Ohio.

M. Liszt proposes that the indeterminate character of punishment
should be only relative, that is to say, limited between a minimum
and a maximum, these being laid down in the sentence of the judge.
Special commissions for supervising the administration of
punishment, consisting of the Governor of the prison, the Public
Prosecutor, the judge who heard the case, and two members
nominated by Government (instead of the court which passed
sentence, as proposed by Villert and Van Hamel), should decide on
the actual duration of the punishment, after having examined the
convict and his record. Thus these commissions would be able to
liberate at once (with or without conditions) or to order a
prolongation of punishment, especially for habitual criminals.

With the formation of these commissions there might be associated
the prison studies and aid of discharged prisoners referred to on
a former page.

But I think that this proposal of M. Liszt is acceptable only for
commissions of supervision, or of the execution of punishment,
such as already exist in several countries, with a view solely to
prison administration and benevolence, and in which of course the
experts of criminal anthropology ought to take part, who, as I
have suggested, should be included in every preliminary criminal
inquiry. As for the determination of the maximum and minimum in
such a sentence, I believe it would not be practicable; the acting
commissions might find it necessary to go beyond them, and it
would be opposed to the very principle of indeterminate
segregation. The reason given by M. Liszt, that with this
provision the contrast with actual systems of punishment would be
less marked, does not seem to me decisive; for the principle we
maintain is so radically opposed to traditional theories and to
legislative and judicial custom that this optional passing of the
limits would avoid no difficulty, whilst it would destroy the
advantages of the new system.

In other words, when the conditions of the act committed and the
criminal who has committed it show that the reparation of the
damage inflicted is not sufficient by way of a defensive measure,
the judge will only have to pronounce in his sentence an
indefinite detention in the lunatic asylum, the prison for
incorrigibles, or the establishments for occasional criminals
(penal colonies, &c.).

The execution of this sentence will be rendered definite by
successive steps, which will no longer be detached, as they now
are, from the action of the magistrate, and taken without his
knowledge, but will be a systematic continuation of his work.
Permanent commissions for the supervision of punishment, composed
of administrative functionaries, experts in criminal anthropology,
magistrates, and representatives of the Public Prosecutor and the
defence, would render impossible that desertion and oblivion of
the convict which now follow almost immediately on the delivery of
the sentence, with the execution of which the judge has nothing to
do, except to see that he is represented. Pardon, or conditional
liberation, or the serving of the full punishment, are all left at
present to the chance of a blind official routine. These
commissions would have great social importance, for they would
mean on one hand the protection of society against imprudent
liberation of the most dangerous criminals, and on the other hand
the protection of the less dangerous against the danger of an
imprisonment recognised as excessive and unnecessary.


Allied to the principle of indeterminate segregation is that of
conditional release, which with the progressive prison system,
known as the Irish, is now accepted in nearly all European
countries. But conditional liberation in the system of definite
punishments, without distinction amongst the types of criminals,
is both contradictory in theory and ineffectual in practice. At
present, indeed, it has only a mechanical and almost impersonal
application, with one fallacious test, that of the alleged
"good conduct'' of the prisoner, which, according to the English
Inquiry Commission in 1863, "can only have the negative value of
the absence of grave breaches of discipline.''

It will be understood that conditional release, as it would be
organised in the positive system of indeterminate segregation,
ought only to be granted after a physio-psychological examination
of the prisoner, and not after an official inspection of
documents, as at present. So that it will be refused, no longer,
as now, almost exclusively in regard to the gravity of the crime,
but in regard to the greater or less re-adaptability of the
criminal to social conditions. It will therefore be necessary to
deny it to mad and born criminals who are guilty of great crimes.

Conditional liberation is now carried out under the special
supervision of the police; but this is an ineffectual measure for
crafty criminals, and disastrous for occasional criminals, who are
shut out by the supervision from re-adaptation to normal
existence. The system of indeterminate segregation renders all
special supervision useless. Moreover, this duty only distracts
policemen by compelling them to keep an eye on a few hundred
liberated convicts, and to neglect thousands of other criminals,
who increase the number of unknown perpetrators of crime.

Similarly as to the discharged prisoners' aid societies, which,
notwithstanding their many sentimental declamations, and the
excellence of their intentions, continue to be as sterile as they
are benevolent. The reason here also is that they forget
to take into account the different types of criminals, and that
they are accustomed to give their patronage impartially to all
discharged prisoners, whether they are reclaimable or not. It
must not be forgotten, moreover, that this aiding of malefactors
ought not to be exaggerated when there are millions of honest
workmen more unfortunate than these liberated prisoners. In spite
of all the sentimentalism of the prisoners' aid societies, I
believe that a foreman will always be in the right if he chooses
an honest workman for a vacancy in his workshops in preference to
a discharged prisoner.

At the same time these societies may produce good results if they
concern themselves solely with occasional criminals, and
especially with the young, and make their study of crime
contribute to the training of future magistrates and pleaders.


2. The second fundamental principle of the positive system of
social defence against crime is that of indemnification for
damage, on which the positive school has always dwelt, in
combination with radical, theoretical, and practical reforms.

Reparation of damage suffered by the victims of crime may be
regarded from three different points of view:—(1) As an
obligation of the criminal to the injured party; (2) as an
alternative for imprisonment for slight offences committed by
occasional criminals; and (3) as a social function of the State on
behalf of the injured person, but also in the indirect and not
less important interest of social defence.

The positive school has affirmed the last two reforms—the second
on the initiative of Garofalo and Puglia, and the third on my own
proposal, which, as being more radical, has been more sharply
contested by the classical and eclectic schools.

In my treatise on "The Right of Punishment as a Social
Function,'' I said: "Let us not be told that civil
reparation is no part of penal responsibility. I can see no
real difference between the payment of a sum of money as a fine
and its payment as damages; but more than that, I think a mistake
has been made in separating civil and penal measures too
absolutely, whereas they ought to be conjoined for defensive
purposes, in preventing certain particular anti-social acts.''
And again, classifying the measures of social defence ("measures
of prevention, reparation, repression, and elimination''), I said
in regard to measures of reparation: "Our proposed reform is not
intended to be theoretical merely, for indeed it may be said
already that this liability to indemnify is established in the
majority of cases; but it should be above all a practical reform,
in the sense that, instead of separating civil and penal measures,
we shall make their joint application more certain, and even
require special regulations to compel the criminal judges, for
instance, to assess the damages, and so avoid the delays and
mischances of a new trial before the civil judges, and to compel
the Public Prosecutor to make an official demand, even when
through ignorance or fear there is no action on the part of the
injured person, that the criminal should be condemned to make good
the loss which he has inflicted. It will then be seen that
the fear of having to make strict restitution will be a spur to
the diligence of the well-to-do, in regard to involuntary
offences, whilst for the poor we shall be able to impose work on
behalf of the injured person in place of pecuniary damages.''

Shortly afterwards Garofalo wrote: "In the opinion of our
school, for many offences, especially slighter offences against
the person, it would be serviceable to substitute for a few days'
imprisonment an effectual indemnification of the injured party.
Reparation of damage might become a genuine penal substitute, when
instead of being, as now, a legal consequence, a right which can
be enforced by the rules of civil procedure, it would become an
obligation from which the accused could in no way extract
himself.''

Of all the positive school, Garofalo has insisted most strongly on
these ideas, enlarging upon them in various proposals for the
practical reform of procedure.

The principle has made further progress since the speech of M.
Fioretti at the first Congress of Criminal Anthropology (Rome,
1885), which adopted the resolution brought forward by MM. Ferri,
Fioretti, and Venezian: "The Congress, being convinced of the
importance of providing for civil indemnification, in the
immediate interest, not only of the injured party, but also of
preventive and repressive social defence, is of opinion that
legislation could most expeditiously enact the most suitable
measures against such as cause loss to other persons, and against
their accomplices and abettors, by treating the recovery of
damages as a social function assigned to its officials,
that is to say, to the Public Prosecutor at the bar, to the judges
in their sentences, to the prison officials in the ultimate
payment for prison labour, and in the stipulation for conditional
release.''

The classical principle that indemnification for loss caused by an
unlawful act is a purely civil and private obligation of the
offender (like that created by any breach of contract!), and that
in consequence it ought to be essentially distinct from the penal
sentence which is a public reparation, has inevitably caused the
complete oblivion of indemnification in every-day judicial
practice. For the victims of crime, finding themselves compelled
to resort to the courts, and fearing the expense of a civil trial
to give effect to the sentence of damages and interest thereon,
have been driven to abandon the hope of seeing their loss actually
and promptly compensated. Hence the necessity for some paltry
compromise, which has to be accepted almost as a generous
concession from the offender, together with the revival of private
vengeance, and a loss of confidence in the reparatory action of
social justice.

Even in the scientific domain it has come about that criminal
experts have abandoned the question of indemnification to the
civil experts, and these in their turn have almost suffered it to
pass into oblivion, inasmuch as they always regarded it as
belonging to matters of penal law and procedure.

It is only by the radical innovation of the positive school that
this legal custom has received new energy and vitality.

I do not, however, intend in this place to concern myself with
indemnification from the first point of view, namely, the forms of
procedure necessary to render it more strict and effectual, such
as the official demand and execution by the Public Prosecutor,
even when no action is brought by the injured party; the fixing of
the damages in every penal sentence; the immediate lien and claim
upon the goods of the condemned person, so as to avoid the
pretence of inability to pay; the paying down of the sum, or a
part of the salary or wages of solvent defendants; compulsory
labour by those unable to pay; the assignment of part of the
prison wages for the benefit of the victims; the payment of all or
most of the damages as a necessary condition of pardon or
conditional release; the establishment of a treasury of fines for
prepayment to the family of the victims; the liability of the
heirs of the condemned persons for indemnifications, and so forth.

All these propositions are in sharp contrast with Art. 37 of the
new Italian penal code, which has given no other guarantee to the
victims of offences than the superfluous, or ironical, or immoral
declaration that "penal condemnation does not prejudice the right
of the injured person to restitution and indemnification''—as
though there were any doubt of the fact.

I only wish to insist on the question of principle, that is, on
the essentially public character which we assign to
indemnification as a social function. For us, to compare the
liability of the criminal to repair the loss caused by his crime
with the liability arising from breach of contract is simply
immoral.

Crime, just as it implies a social reaction in the form of an
indefinite segregation of the criminal, when the act is serious
and the author dangerous, ought also to imply a social reaction in
the shape of indemnification, accessory to segregation when that
is necessary, or adequate by itself for social defence when the
act is not serious, and the author is not dangerous. For slight
offences by occasional criminals, strict indemnification will, on
the one hand, avoid the disadvantages of short terms of
imprisonment, and will, on the other hand, be much more
efficacious and sensible than an assured provision of food and
shelter, for a few days or weeks, in the State prisons.

Indemnification may naturally take two forms, as a fine or an
indemnity payable to the State, and as an indemnity or a
reparation payable to the injured person.

It may also be added that the State should be made responsible for
the rights of the victims, and give them immediate satisfaction,
especially for crimes of violence, recouping itself from the
offender, as it does, or ought to do, for legal costs.

The evolution of punishment is a striking proof of this. First,
the reaction against crime is an entirely private concern; then it
assumes a weaker form in pecuniary reparation, whereof, by and by,
a portion goes to the State, which presently retains the whole
sum, leaving to the victim the poor consolation of proceeding
separately for an indemnification. Nothing therefore could be
more in accord with this evolution of punishment than the proposed
reform, whereby the indemnification of a merely private
injury, as it is regarded in the primitive phase of penal justice,
becomes a public function, so far as it is the legal and social
consequence of the offence.

The classical principles in this respect, and the practical
consequences which flow from them, are more like a humorous farce
than an institution of justice; and it is only the force of habit
which prevents the world from realising its full comicality.

In fine, citizens pay taxes in return for the public services of
the State, amongst which that of public security is the chief.
And the State actually expends millions every year upon this
social function. Nevertheless, every crime which is committed is
followed by a grotesque comedy. The State, which is responsible
for not having been able to prevent crime, and to give a better
guarantee to the citizens, arrests the criminal (if it can arrest
him—and seventy per cent. of DISCOVERED crimes go unpunished).
Then, with the accused person before it, the State, "which ought
to concern itself with the lofty interests of eternal justice,''
does not concern itself with the victims of the crime, leaving the
indemnification to their prosaic "private interest,'' and to a
separate invocation of justice. And then the State, in the name
of eternal justice, exacts from the criminal, in the shape of a
fine payable into the public treasury, a compensation for its own
defence—which it does not secure, even when the crime is only a
trespass upon private property!

Thus the State, which cannot prevent crime, and can only repress
it in a small number of cases, and which fails accordingly
in its first duty, for which the citizens pay it their taxes,
demands a price for all this! And then again the State,
sentencing a million and a half to imprisonment within ten years,
puts the cost of food and lodging on the shoulders of the same
citizens, whom it has failed either to defend or to indemnify for
the loss which they have suffered! And all in the name of eternal
retributive justice.

This method of "administering justice'' must be radically
altered. The State must indemnify individuals for the damage
caused by crimes which it has not been able to prevent (as is
partially recognised in cases of public disaster), recouping
itself from the criminals.

Only then shall we secure a strict reparation of damage, for the
State will put in motion its inexorable fiscal machinery, as it
now does for the recovery of taxes; and on the other hand the
principle of social community of interests will be really admitted
and applied, not only against the individual but also for him.
For we believe that if the individual ought to be always
responsible for the crimes which he commits, he ought also to be
always indemnified for the crimes of which he is the victim.

In any case, as the indefinite segregation of the criminal is the
fundamental principle of the positive system of social defence
against crime, apart from the technical systems of imprisonment
and detention, so indemnification as a social function is a second
essential principle, apart from the special rules of procedure for
carrying it into effect.

These two fundamental principles of the positive system would
still be incomplete if they did not come into practical operation
according to a general rule, which leads up to the practical
organisation of social defence—that is to say, the adaptation of
defensive measures to the various criminal types.

The tendency of the classical theories on crime and prison
discipline is in sharp contrast, for their ideal is the
"uniformity of punishment'' which lies at the base of all the
more recent penal codes.

If for the classical school the criminal is but an average and
abstract type, the whole difference of treatment is, of course,
reduced to a graduation of the "amount of crime'' and the
"amount of punishment.'' And then it is natural that this
punitive dosing should be more difficult when the punishments are
different in kind, and not very similar in their degrees of
coincident afflictive and correctional power. Thus the ideal
becomes a single punishment, apportioned first by the legislature
and then by the judge, in an indefinite number of doses.

Here and there a solitary voice has been heard, even amongst the
classical experts, objecting to this tendency towards dogmatic
uniformity; but it has had no influence. The question brought
forward by M. D'Alinge at the Prison Congress in London
(Proceedings, 1872, p. 327), "whether the moral classification
of prisoners ought to be the main foundation of penitentiary
systems, either in association or on the cellular plan,'' which he
himself decided in the affirmative, was not so much as discussed,
and it was not even referred to at the successive
Congresses at Stockholm (1878), Rome (1885), and St. Petersburg
(1889). On the contrary, the Congress at Stockholm decided that,
"reserving minor and special punishments for certain slight
infractions of the law, or for such as do not point to the corrupt
nature of their authors, it is desirable to adopt for every prison
system the greatest possible legal assimilation of punishments by
imprisonment, with no difference except in their duration, and the
consequences following upon release.''[20]



[20] Proceedings, i. 138-70, 551-7, 561-3. Now and then,
however, a prison expert of more positive tendencies maintains
"the very great use, or rather the scientific necessity, of the
classification of prisoners as a basis for the punitive and prison
system'' (Beltrani Scalia.)



To positivists, the "uniformity of punishment,'' even of mere
detention, appears simply absurd, since it ignores the capital
fact of different categories of criminals.

There must be homogeneity between the evil and its remedy; for, as
Dumesnil says, "the prisoner is a moral (I would add a physical)
patient, more or less curable, and we must apply to him the great
principles of the art of medicine. To a diversity of ills we must
apply a diversity of remedies.''

In this connection, however, we must avoid the two extremes,
uniformity of punishment and the so-called individualisation of
punishment, the latter especially in fashion amongst American
prison experts. No doubt it would be a desirable thing to apply a
particular treatment to each convict, after a physical and
psychological study of his individuality, and of the conditions
which led him into crime; but this is not practicable when the
number of prisoners is very great, and the managing staff
have no adequate notions of criminal biology and psychology. How
can a governor individualise the penal treatment of four or five
hundred prisoners? And does not the cellular system, which
reduces the characteristic manifestations of the personal
dispositions of prisoners to a minimum, levelling them all by the
uniformity of routine and silence, render it impossible to observe
and get to know the special character of each condemned person,
and so specialising the discipline? Where, too, are we to find
the necessary governors and warders who would know how to
discharge this difficult duty? The solid fact that particular
houses of correction or punishment are in excellent condition when
their governors have the psychological intuition of a De Metz, a
Crofton, a Spagliardi, or a Roukawichnikoff, and languish when he
departs, strikingly demonstrates that the whole secret of success
lies in the spirit of a wise governor, skilled in psychology,
rather than in the slender virtue of the cell.

Just as an imperfect code with good judges succeeds better than a
"monumental'' code with foolish judges, so a prison system,
however ingenious and symmetrical, is worthless without a staff to
correspond.

And as the question of the staff is always very serious,
especially for financial reasons, I believe that, instead of the
impracticable idea of individualisation in punishment, we ought to
substitute that of classification, which is equally efficacious
and more easily applied. It cannot be denied that criminal
anthropologists are not all agreed on the classification of
criminals. But I have already shown that the differences
between proposed classifications are only formal and of secondary
importance; and again, the number of those who agree to the
classification which I have proposed increases day by day.

Before inquiring how we can practically organise the positive
system of social defence on the basis of this anthropological
classification of criminals, we must bear in mind two rules,
common to all the technical proposals of the same system.

First, care must be taken that segregation does not become or
continue to be (as it is too often at present) a welcome refuge of
idleness and criminal association, instead of a deprivation.

Penitentiaries for condemned prisoners—the classical prison
experts make no distinction between their cells for prisoners
before trial and those for convicts!—should not be so comfortable
as to excite the envy (a vast injustice and imprudence) of the
honest and ill-fed rural labourer vegetating in his cottage, or of
the working-man pining in his garret.

Secondly, the obligation to labour should be imperative for all
who are in prison, except in case of sickness. Prisoners should
pay the State, not as now for their tobacco and wine, but for
food, clothes, and lodging, whilst the remainder of their earnings
should go to indemnify their victims.

The classical theory declares that "the State,'' as Pessina
writes, "being compelled to adopt deprivation of liberty as the
principal means of penal repression and retribution, contracts an
absolute obligation to provide those whom they punish in
this way not only with bodily sustenance, but also with the means
of supplying their intellectual and moral needs.'' So the State
maintains in idleness the majority even of those who are said to
be "sentenced to hard labour,'' and the offence, after it has
served the turn of the offender, further assures him free lodging
and food, shifting the burden on to honest citizens.

I cannot see by what moral or legal right the crime ought to
exempt the criminal from the daily necessity of providing for his
own subsistence, which he experienced before he committed the
crime, and which all honest men undergo with so many sacrifices.
The irony of these consequences of the classical theories could
not, in fact, be more remarkable. So long as a man remains
honest, in spite of pathetic misery and sorrow, the State takes no
trouble to guarantee for him the means of existence by his labour.
It even bans those who have the audacity to remind society that
every man, by the mere fact of living, has the right to live, and
that, as work is the only means of obtaining a livelihood, every
man has the right (as all should recognise the duty) of working in
order to live.

But as soon as any one commits a crime, the State considers it its
duty to take the utmost care of him, ensuring for him comfortable
lodging, plenty of food, and light labour, if it does not grant
him a happy idleness! And all this, again, in the name of eternal
and retributive justice.

It may be added that our proposals are the only way of
settling the oft-recurring question as to the economic competition
(by the price of commodities), and the moral competition (in the
regularity of work) which prison labour unjustly wages with free
and honest labour. As a matter of fact, as prisoners can only
remain idle or work, they must clearly be made to work. But they
must be made to work at trades which come less into competition
with free labour and it is especially necessary to give prisoners
wages equal to those of free labourers, on condition that they pay
the State for their food, clothes, and lodging, whilst the
remainder goes to indemnify their victims.

Over the prison gates I should like to carve that maxim of
universal application: "He who will not work, neither shall he
eat.''



V.

Since the novel proposals put forward half a century ago, amongst
others by doctors Georget and Brierre de Boismont, a whole library
of volumes has been published in favour of criminal lunatic
asylums. A few voices here and there were heard in opposition or
reserve, but these have almost entirely ceased.

Criminal lunatic asylums were adopted in England as early as 1786.
In 1815 Bethlehem Hospital was appropriated to criminal lunatics,
and the Broadmoor Asylum was founded in 1863. Similar asylums
exist at Dundrum in Ireland (1850), at Perth in Scotland (1858),
at New York (1874), and in Canada (1877).

On the continent of Europe there is not to this day a regular
asylum for mad criminals, though France, after an
experiment in treating condemned madmen at Bicetre, opened a
separate wing for them in the prison at Gaillon. Holland has
assigned to them the hospital of Bosmalen (Brabant); Germany has
special wards in the establishments at Waldheim, Bruchsaal, Halle,
and Hamburg; and Italy, after founding a special ward in 1876, at
the establishment for relapsed prisoners at Aversa, has converted
the Ambrogiana establishment at Montelupo in Tuscany, into an
asylum for insane convicts, and for prisoners under observation as
being of unsound mind. The new Italian penal code, though not
openly recognising the foundation of asylums for criminals
acquitted on the ground of insanity, has, in its general spirit of
eclecticism, given judges the power of handing them over to the
competent authority when it would be dangerous to release them
(Art. 46). At the Montelupo Asylum criminals acquitted on the
ground of insanity are also detained, at first under observation,
then by a definite order from the president of the Tribunal, who
can revoke his order on the petition of the family, or of the
authorities.

The inquiry into existing legislation on insane criminals,
undertaken by the "Societe Generale des prisons de
Paris,'' showed that in France, Germany, Austria-Hungary, Croatia,
Belgium, Portugal, and Sweden, the authors of crimes or offences
who are acquitted on the ground of insanity are withdrawn from all
control by the judicial authority, and entrusted to the more or
less regular and effectual control of the administrative
authority. In England, Holland, Denmark, Spain, and
Russia, on the contrary, the judicial authority is empowered and
even compelled to order the seclusion of these individuals in an
ordinary or a criminal lunatic asylum.


Of the objections raised against this form of social defence
against insane criminals, I pass over that of the cost, which is
considerable; for even from the financial point of view I believe
that the actual system, which gives no guarantee of security
against madmen with criminal tendencies, is more costly to the
administration, if only by reason of the damage which they cause.
I also pass over the other objection, based on the violent scenes
which are said to be inseparable from the association of such
prisoners; for experience has shown that forebodings are ill
founded in regard to criminal asylums where the inmates are
classified according to their tendencies, under the direction of a
staff with special knowledge, who are able to prevent such
outbreaks. In ordinary asylums, on the other hand, a few insane
criminals are sufficient to render the maintenance of order very
difficult, and their inevitable and frequent outbreaks have dire
effects on the other patients.

The most serious and repeated difficulties in regard to lunatic
asylums spring from the very principles of the defensive function
of society.

It is said in the first place that the author of a dangerous
action is either a madman or else a criminal. If he is a madman,
he has nothing to do with penal justice—so Fabret, Mendel, and
others have said; his action is not a crime, for he had no
control over himself, and he ought to go to an ordinary
asylum, special measures being taken for him, as for every other
dangerous madman. Or else he is a criminal, and then he has
nothing to do with a lunatic asylum, and he ought to go to prison.

But there is a fallacy in this dilemma, for it leaves out the
intermediate cases and types, where particular individuals are at
the same time mad and criminal. And even if it were a question of
madmen only, the logical consequence would not be to bar out
special asylums, for it seems clear that if ordinary madmen (not
criminals, that is, not the authors of dangerous actions) ought to
go to an ordinary asylum, criminal madmen, or madmen with a
tendency to commit dangerous or criminal actions, as well as those
who have committed them, ought to go to a special asylum for this
category of madmen. For, on the other hand, we constantly see
that administrative authorities which observe the same rules for
the seclusion of ordinary and criminal madmen do not prevent the
release of the latter, some time after the crime, when the
disturbance of mind and even the recollection of the deed are all
but effaced; and criminal madmen commit other violent or
outrageous excesses, very soon after they are left exposed to
their diseased tendencies.[21]



[21] M. Lunier, writing in 1881 of epileptics, and the method of
treatment and aid appropriate to them, says that of 33,000 known
epileptics in France, 5,200 only are in private or public asylums,
whilst 28,000 remain with their families. From these figures it
would appear very probable that these 28,000 epileptics left at
liberty commit crimes and offences.


It may be answered that it is sufficient to have special
wings in ordinary asylums, which would also get over the
repugnance of families against the association of their quiet and
harmless patients with murderous and outrageous madmen. But
experience has already proved that these special wards do not work
well, for it is too difficult with the same staff to apply such
varied treatment and discipline as are necessary for ordinary and
criminal lunatics.

Fabret says that "a so-called criminal, when he is seen to be
mad, should cease to be regarded as a criminal, and ought purely
and simply to resume his ordinary rights.''

But, in the first place, if a madman is distinguished from all
other inoffensive madmen by the grave fact of having killed, or
burned, or outraged, it is clear that he cannot "purely and
simply'' return to the same kind of treatment which is given to
harmless lunatics.

The truth is that this argument applies to a large number of ideas
which science is continually weeding out, and which have proceeded
on the assumption that madness is an involuntary misfortune which
must be treated, and that crime is a voluntary fault which must be
chastised. It is evident on the other hand that crime as well as
folly, being the result of abnormal conditions of the individual,
and of the physical and social environment, is always a question
for social defence, whether it is or is not accompanied in the
criminal by a more or less manifest and clinical form of mental
malady.

The same reply holds good for the second objection to asylums for
criminal madmen, when it is said that a madman cannot, for
the sole reason that he has killed or stolen, be shut up
indefinitely, perhaps for ever, in an asylum.

Mancini, who was keeper of the seals, and at the same time a great
criminal pleader, aptly expressed the ideas of the classical
school when replying to an interpellation of Deputy Righi on the
foundation of criminal lunatic asylums:—"I could never
understand how the same court, which is obliged by law to acquit
upon a verdict of the jury that the accused is insane, and
therefore not responsible, could also decree the compulsory
seclusion in an asylum, for any period, of the same accused
person. . . . Is it because he has committed a crime? But that
is not true, for the man who did not know what he was doing, and
who for that reason has been declared innocent before the law, and
irresponsible, cannot have committed a crime. There is
consequently no legal reason why he should lose the exercise and
enjoyment of that liberty which is not denied to any other
unfortunate beings who are diseased like himself.''

It would be impossible to put more clearly the pure classical
theory on crime and punishment; but perhaps it would be equally
impossible to show less solicitude for social defence against
criminal attacks. For it is certain that the mad murderer "has
committed no crime'' from the ethical and legal point of view of
the classical school; but it is still more certain that there is a
dead man, and a family left behind who may be ruined by the deed,
and it is very probable that this homicide, "innocent before the
law,'' will renew his outrage on other victims—and at any
rate they are innocent.

And as for the indefinite period of seclusion in an asylum, it is
well to remember, from the point of view of individual rights,
that the formula with which a mad criminal is committed to an
asylum "during her Majesty's pleasure'' had its origin in
England, in the classic land of the habeas corpus—the sheet
anchor of the ordinary citizen. Again, it is easy to see that the
indefinite seclusion of mad criminals is rendered necessary by the
same reasons which create the fundamental rule for criminals of
every kind. It may therefore come to a question of allowing or
disallowing the general principles of the positive school. But it
cannot be denied that they are unassailable, both in theory and in
practice. Crime is a phenomenon as natural as madness—the
existence of society compels the organised community to defend
itself against every anti-social action of the individual—the
only difficulty is to adapt the form and duration of this self-
defence to the form and intensity (the motives, conditions, and
consequences) of the action. Indefinite seclusion, therefore, in
a special establishment is inevitable on account of the special
condition of these individuals.

The practical considerations of social defence are so strong that
the great majority of classical criminal experts now accept
criminal lunatic asylums, in spite of their manifest contradiction
of the formal theories of moral responsibility, on the strength of
which these asylums were, and still are, opposed by the
intransigents of the classical school. This is why the new
Italian penal code, in spite of its progressive aim, had
not the courage in 1889 to adopt them frankly; and in the
definitive text, as in the ministerial draft, it took refuge in an
eclectic arrangement which has already met with a crowd of
obstacles, due to the vagueness of the principles inspiring the
code.

These criminal lunatic asylums ought to be of two kinds, differing
in their discipline, one for the insane authors of serious and
dangerous crimes, such as homicide, incendiarism, rape, and the
like; and the other for slighter crimes, such as petty theft,
violent language, outrages on public decency, and the like. For
the latter, seclusion should be shorter than for the others. Thus
in England convicts are sent to the State Asylum at Broadmoor,
whilst minor offenders are sent to a county asylum.

Persons thus confined should be (1) prisoners acquitted on the
ground of insanity, or sentenced for a fixed period, at the
preliminary inquiry; (2) convicts who become insane during the
expiation of their sentence; (3) insane persons who commit crimes
in the ordinary asylums; (4) persons under observation for weak
intellect in special wards, who have been put on their trial, and
given grounds for suspecting madness.

At Broadmoor, on December 31, 1867, there were 389 male patients
and 126 female; and in 1883 there were 381 males and 132 females,
thus classified:—

Mad Criminals. Male. Female.
Murder ... ... ... ... ... 155 ... 85
Attempted murder... ... ... 111 ... 18
Parricide... ... ... ... ... 7 ... 6
Theft ... ... ... ... ... 23 ... 3


Mad Criminals. Male. Female.
Incendiarism ... ... ... ... 24 ... 1
Military offence ... ... ... 21 ... —
Attempted suicide... ... ... 3 ... {?}



In Germany, in the prison at Waldheim, the proportion of mad
criminals to the corresponding classes of ordinary criminals was
as follows:—
Percentage
Crimes. In Prison. Insane.
Homicide, actual or attempted ... 74 ... 17.6
Murder and malicious wounding ... 51 ... 9.8
Highway robbery with violence ... 64 ... 12.5
Incendiarism ... ... ... ... ... 219 ... 6.8
Rape ... ... ... ... ... ... 52 ... 5.8
Indecent assault ... ... ... ... 299 ... 5.7
Perjury ... ... ... ... ... ... 220 ... 2.7
Military crimes ... ... ... ... 23 ... 21.7
Crimes against property ... ... ... 5,116 ... 1.9
Other offences ... ... ... ... 158 ... 0.6
—— ——
Total ... ... 6,276 ... 2.7



That is to say, there was (1) a very large proportion of madmen
amongst the military offenders, which may point to the effect of
military life, or else a careless selection for conscription, or
both causes taken together; and (2) a greater proportion of mad
criminals amongst the more serious offenders, partly because the
authors of crimes of violence are subjected to more strict and
frequent observation for madness.

It seems to me that this fact, which is also confirmed by the
figures for England, is the most cogent argument in favour of
criminal lunatic asylums.


For born criminals, since, as Dr. Maudsley says, we are face to
face, if not exactly with a degenerate species, at least with a
degenerate variety of the human species, and the problem is
to diminish their number as much as possible, a preliminary
question at once arises, namely, whether the penalty of death is
not the most suitable and efficacious form of social defence
against the anti-social class, when they commit crimes of great
gravity.

It is a question which for a century past has divided the criminal
experts and wearied the general public, with perhaps more
sentimental declamations than positive contributions; a question
revived by the positive school, which, however, only brought it
forward, without discussing it, at the first Congress on Criminal
Anthropology at Rome; whilst it has been recently settled by the
new Italian penal code, which is the first code amongst the
leading States to decree (January 1, 1890) the legal abolition of
the death penalty, after its virtual abolition in Italy since the
year 1876, except for military crimes.

Amongst the classical experts, as amongst the positivists, there
are those who would abolish and those who would retain the death
penalty; but the disagreement on this subject is not equally
serious in the two camps. For whilst the classical abolitionists
almost all assert that the death penalty is inequitable, the
positivists are unanimous in declaring it legitimate, and only a
few contest its practical efficacy.

It seems to me that the death penalty is prescribed by nature, and
operates at every moment in the life of the universe. Nor is it
opposed to justice, for when the death of another man is
absolutely necessary it is legitimate, as in the cases of lawful
self-defence, whether of the individual or of society,
which is admitted by classical abolitionists such as Beccaria and
Carrara.

The universal law of evolution shows us also that vital progress
of every kind is due to continual selection, by the death of the
least fit in the struggle for life. Now this selection, in
humanity as with the lower animals, may be natural or artificial.
It would therefore be in agreement with natural laws that human
society should make an artificial selection, by the elimination of
anti-social and incongruous individuals.

We ought not, however, to carry these conclusions too far, for
every problem has its relative bearings, and positive observation,
unlike logic, does not admit simple and exact solutions. It must
be observed that this idea of artificial selection, though true,
would lead to exaggerated conclusions, if it were carried into the
sociological field without reserve, and without the necessary
balance between the interests and rights of the community and of
individuals. If this idea were taken absolutely, indeed, it would
render legitimate and even obligatory an ultra-Spartan elimination
of all children born abortive or incurably diseased, or anti-
social through their idiotcy or mental insanity.

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

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

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

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

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

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

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

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

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

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



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


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



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



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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

There has already been, amongst the same prison experts, a
certain retrogressive movement in regard to isolation. Absolute
and continued isolation, indeed, both by day and by night
("solitary confinement'') was at first recommended, even to the
introduction, grotesque in spite of good intentions, of hoods and
masks for the prisoners, a mediaeval reminiscence almost
parallel with the Brothers of Pity in some Italian towns, for help
to the wounded. Presently it was seen that this sort of thing
certainly could not assist in the amendment of the guilty, and
then isolation was relaxed (still making it applicable both by day
and by night) with visits to prisoners by the chaplain, governors,
and representatives of vigilance and prisoners' aid societies.
This is called "separate confinement.'' After this it was
recognised that the real need for isolation was at night, and then
the Auburn system was arrived at: isolation in cells by night,
with daily labour in common, with an obligation (which cannot be
enforced) of silence. And finally, seeing that in spite of the
threefold panacea of every prison system (isolation, work, and
instruction, especially religious instruction) relapses still
increased, it was understood that it might not be very useful to
subject a man for months or years to the monastic life of Trappist
brothers, in these monstrous human hives (which Bentham brought to
the notice of the French Constituent Assembly under the name of
"panopticons''), and to discharge him from prison at the end of
his term, and plunge him into all the temptations of an atmosphere
to which his lungs had become disaccustomed.

Then the "progressive system'' was introduced, first in
England, where it was devised by Maconochie, next in Ireland,
which has given it a name, alternated with that of Sir W. Crofton.
This is the most symmetrically perfect machinery, though reminding
one somewhat of a company of marionettes. It confirms what was
said by Haeckel, that the actual is a summary of the moods of
aspiration, for it precisely sums up the systems which preceded
it, each of which constitutes a phase of the progressive system.
There is first of all a period of brotherly charity—absolute
isolation for the prisoner to fall back upon his conscience, or to
listen to the voice of remorse, or to receive an impression of
devotion and fear. After this comes the Auburnian phase, of
isolation by night and labour (when labour is accorded) by day,
with the constraint of silence. Then an intermediary period in
the agricultural colony or labour-gang outside the prison, like a
period of convalescence, to accustom the lungs to the keen air of
liberty. This is the phase added by Sir W. Crofton to the English
system. Lastly comes the period of conditional release (on ticket
of leave), whereby the last portion of the punishment is remitted,
and will count as expiated if during the time of liberation, and
for a succeeding period, the convict does not commit another
crime.

The progressive or retrogressive passage from one phase to another
is made by a sort of automatic regulator, depending on the number
of marks gained or lost by the prisoner through his good or bad
behaviour, to which we know the moral or psychological value to be
attached—a value purely negative.

This progressive, gradual, or Irish system has obtained a
supremacy in Europe, so that even Belgium, the classic land of the
cellular system, reconsidered the ideas which it had based on
daily experience, and was the first continental country to
introduce conditional sentences (in 1888), which are the fruit of
short sentences and cellular punishments.

I do not deny that this progressive system is better than the
others, though we must not forget that the almost miraculous
effects of amendment and decrease of recidivism (which indeed are
claimed for every new system, only to be disproved later on) were
due in Ireland to the wholesale emigration of those conditionally
released to North America—an emigration amounting to 46 per cent.
of the prisoners released. Nor must we forget that this system,
which requires a trained staff of officers, is less difficult to
work in countries where, as in Ireland, there are only a few
hundred prisoners; but it would be much more difficult in Italy or
France, where the prisoners are numbered by tens of thousands. In
these countries, accordingly, the system will not be practical
unless the principle of classifying prisoners in biological and
psychological categories is conjoined with it; for without this we
shall not get rid of the impersonal system which is the vice of
our present penal law, and under which, even in our prison
administration, we treat the prisoner as a mere symbol, to which
we can apply the three conventional rules of the cell, hard
labour, and instruction.

But I am strongly opposed to, or accept simply as accessory
(even for the seclusion of prisoners before trial, after the
preliminary examination), cellular isolation by itself, which has
reached the height of absurdity and inhumanity in cases of
imprisonment for life.

As Mancini said in 1876, discussing the draft of the Italian penal
code, "the punishment of hard labour for life, which is
substituted in the draft for the capital sentence, differs
substantially in its severity of privation and misery from all
other modes of imprisonment. It must be undergone in one or two
special prisons to be erected within the country. It would be the
saddest and most terrible thing which the imagination of man could
conceive. These tombs of the living, whom society has rejected
for ever, unlike all other prisons, will condemn their inmates to
continuous solitary immurement in cells, and to a life which may
be worse than death itself. . . . This most wretched condition,
which the free man cannot realise without horror, is to last ten
years; and it is not to be in the power of man to bring it to an
end sooner, if the prisoner, broken down by physical weakness, or
threatened by loss of reason, cannot endure it any longer.''

After this description, I am not sorry that I denounced the
cellular system as one of the madnesses of the nineteenth century.

This useless, stupid, inhuman, costly "tomb of the living'' must
be repudiated, even when reduced to its lowest terms by the new
Italian code, wherein Parliament, accepting part of my amendment,
fixes the term of absolute seclusion at seven years.

It will be seen by this description of cellular imprisonment that
the classical criminal and prison experts have logically arrived
at the conclusion that perpetual punishment should be abolished;
and this renders recidivism possible even in murder. But it is
clear that what we ought to abolish is not perpetual separation,
but only the stupidly harsh form of isolation in cells—and this
not only in life sentences, but in all sentences.

Cellular imprisonment is inhuman, because it blots out or weakens,
in the cases of the least degenerate criminals, that social sense
which was already feeble in them, and also because it inevitably
leads to madness or consumption (by onanism, insufficient
movement, air, &c.). Hence it drives the prison authorities, in
order to avoid these disastrous consequences, to the injustice of
building cells for murderers which are decidedly comfortable, and
consequently a mockery of the honest wretchedness of the cottages
and garrets of the poor. The treatment of mental diseases
recognises a special form of insanity under the name of prison
madness.

Cellular imprisonment, in temporary or indefinite sentences, can
do nothing for the amendment of the guilty, especially because,
when we do not amend the social environment, it is useless to
lavish care on our prisoners if, as soon as they quit prison, they
must return to the same conditions which led them into crime. No
adequate social prevention can in any way be provided by the more
or less arcadian devices of the prisoners' aid societies. The
chief mistake of the prison experts has been to concentrate their
attention exclusively on the cell and in the cell,
forgetting the external factors of crime; so that, by a familiar
psychological process, the cell has become for prison experts what
money is to the avaricious: it has ceased to be a means, and has
become an end in itself.

Again, the cellular system is ineffectual because the very
isolation which was its original object is incapable of
realisation. Prisoners find a thousand means of carrying on
communication with each other, during their walks, or by writing
on the leaves of books lent to them to read, or by knocking on
their walls according to a conventional alphabet, or by writing in
the sand, or by using the drains as telephonic receivers, as was
done in the cellular prisons of Mazas, Milan, &c. Plain proofs of
this may be found in Lombroso's "Les Palimpsestes des Prisons.''
"The public, and even well-informed persons, honestly believe
that the cellular prison is a dumb and paralytic thing, without
tongue or hands, simply because the law has ordered silence and
inactivity. But as no decree, however vigorous, can counteract
the nature of things, so this organism speaks, moves, occasionally
wounds or slays, in spite of all the decrees. Only, as always
happens when a necessity of humanity is opposed by a law, it acts
by less known, underground and hidden means.''

Moreover, the cellular system is unequal in its application, for
difference of race has much to say to it, and in fact it is a
clumsy machinery of the northern races, repugnant to those of the
south, more dependent on the open air and light. Apart from that,
isolation has very different effects amongst people of the same
nation, according to the different vocations of the
prisoners, especially of occasional offenders. In this connection
the testimony of Faucher, Ferrus, and Tarde is thoroughly just,
that in prison administration we ought to observe a distinction
between dwellers in town and country.[23]



[23] Yet the question whether the cellular system should be
modified in accordance with the nationality, social condition, and
sex of criminals, which has not been brought forward since the
Prison Congress at Stockholm, was there decided by the following
resolution:—"The cellular system, where it is in operation, may
be applied without distinction of race, social condition (as
regards townsmen or rural population), or sex, provided that the
authorities have regard to these special conditions in matters of
detail. Exception may be made in respect of the young, and if
cellular discipline is applied to them also, it should be in such
a way as not to prejudice their physical and moral development.''
("Proceedings,'' 1878, pp. 303, 617.)



Again, the cellular system is too costly to be adopted as the only
form of imprisonment—which, however, is enacted in the Italian
penal code, the French law of 1875, and elsewhere.

And it is just by reason of the enormous expenditure on vast
prisons that the grievous and mischievous contrast arises between
the comforts provided for murderers and men guilty of arson in
their cells and the privations to which the honest poor are
exposed in hospitals, poorhouses, town garrets, country hovels,
and barracks. One of the most significant results which I noticed
at the exhibition of various plans of cells in connection with the
Prison Congress at Rome in 1885 was that it demonstrated to the
general public how the cellular system treats prisoners (whether
before trial or after sentence) better than the poor, who continue
to be honest in spite of their wretchedness.[24]



[24] Even prison experts have been concerned by the vast expense
of the cellular system, and the following question was brought
forward at the Congress at Rome:—"What modifications
would be possible, in accordance with recent experience, in the
construction of cellular prisons so as to render it more simple
and less costly, without detriment to the necessary conditions of
a sound and intelligent application of the system?'' Detailed
recommendations were agreed to on the motion of M. Herbette; but
the system is unchanged, with requirements which can be only very
slightly reduced.


In Germany, as well as in France and Italy, legislation has
ordained, by codes and special laws, the cellular system for all
punishment by imprisonment; but fortunately the system has not yet
been adopted, thanks to its enormous cost. So that we have the
further absurdity of codes based on prison systems which have no
actual existence. And since criminals have their part in the law,
not as it is written but as it is carried out, the result is
naturally disastrous.

Thus the cellular system bears hard upon the honest classes, both
by its enormous cost, under the form of taxation, and by
competition with free and honest labour. The competition is moral
in the first place, for the criminal is always assured of daily
work, lodgings, and food, whilst the honest workman is assured of
neither. Even the economic competition, though not extensive when
we take the totals of free workmen and prisoners, is still very
keen in particular places and for particular industries, whilst
prison labour never indemnifies the State for its expenditure; for
clearly with cellular isolation it is impossible to organise
important and profitable industry. It is the small industries,
such as shoemaking and carpentry, which crush the same free
industries all round the prison, for they cannot stand against the
artificial competition created by the nominal wages of the prison
hands. Though for moral and financial reasons the convicts
must work, it is evident that on these grounds we cannot accept
the cellular system as a pattern of prison organisation.

It is quite sufficient, in prisons for the segregation of
criminals, to provide for isolation by night, which requires
buildings far more simple and less costly than those of the
cellular prisons.

Work in the open air is the only useful basis of organisation for
convict prisons.

Air, light, movement, field labour, especially in southern
counties and for the majority of prisoners, who are rural—these
are the only physical and moral disinfectants possible for
prisoners not entirely degenerate, or likely to prevent at least
the absolute brutalisation of the incorrigible, by giving them
healthy and more remunerative work.

The penal agricultural colony, in lands which need clearing, is
the best for adults, passing from the least to the most healthy
according to the categories of criminals—born, habitual,
occasional—and according to the gravity of the crimes committed.
To this may be added, for convicts less capable of restoration to
social life, labour in mines, especially when the mines are State