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2.2. II.

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

We are taught by the everyday experience of the

family, the school, associations of men and women, and the history of social life, that in order to lessen the danger of outbreaks of passion it is more useful to take them in their origin, and in flank, than to meet them when they have gathered force.

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

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

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

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

These penal substitutes, when they have once been established in the conscience and methods of legislators, through the teaching of criminal sociology, will be the recognised form of treatment for the social factors of crime. And they will also be

more possible and practical than that universal social metamorphosis, direct and uncompromising, insisted on by generous but impatient reformers, who scorn these substitutes as palliatives because humanitarian enthusiasm causes them to forget that social organisms, like animal organisms, can be only partially and gradually transformed.

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

It is just this fundamental idea of penal substitutes which shows how necessary it is that the sociologist and legislator should have such a preparation in biology and psychology as Mr. Spencer justly insisted on in his "Introduction to Social Science." And it is the fundamental idea rather than the substitutes themselves that we should bear in mind if we

would realise their theoretical and practical value as part of a system of criminal sociology.

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

Let us take note of a few examples.

I. In the Economic Sphere.—Free Trade (apart from the temporary necessity of protecting a particular manufacturing or agricultural industry), by preventing famines and exceptional high prices of and taxes on food, eliminates many crimes and offences, especially against property.—Unrestricted emigration is a safety-valve, especially for a country in which this phenomenon, assuming large proportions, carries off many persons who are easily driven to crime by wretchedness, or by their unbalanced energy. Thus the number of recidivists has diminished in Ireland, not by virtue of her prison systems, but by emigration, which reached forty-six per cent. of released prisoners. In Italy, also, there has been a decrease

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

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

In France the average consumption of wine, estimated at 62 litres (13.64 gallons) per head in 1829, exceeded 100 litres in 1869; and in Paris the average of 120 litres in 1819-30, reached 227 litres in 1881. The average yearly consumption of alcohol in France rose from .93 in 1829 to 3.24 in 1872, and 3.9 in 1885, the rates in a few towns being still higher. The total manufacture of alcohol in France (95 per cent. of

which is consumed in the form of drink) rose from 479,680 hectolitres in 1843 to 1,309,565 in 1879, and 2,004,000 in 1887. Simultaneously, we have seen that there was an increase of crimes and offences in France, suicides in particular having increased from 1,542 in 1829 to 8,202 in 1887.

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

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

But apart from their natural variation, the connection between drink and crime is definitely established. Every day we have the confirmation of Morel's statement, that "alcoholism has produced a demoralised and brutalised class of wretched beings, characterised by an early depravation of instincts, and by indulgence in the most immoral and dangerous actions." It is

useless to quote again in this place the data of psychopathology and legal medicine, or those of prison statistics relating to imprisoned drunkards, or to tavern brawls as the proved causes of crime.

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

Passing over the grave errors of fact in M. Colajanni's brochure, I will only observe that this pro

position is a pure misapprehension of statistical logic.

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

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

tained in the general statements, apart from special and scientific inquiries into alcoholism as a direct and manifest cause of crime and suicide.

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

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

North America, England, Sweden and Norway,

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

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

The irregularity of wages, and the deceitful vigour imparted by the first recourse to alcohol, the poverty and excessive toil of the working classes, insufficiency of food, inherited habits, and the lack of efficacious preventive measures, are influences which prevent the working man from resisting this scourge; and no fiscal or repressive law, acting solely by direct compulsion, will ever be able to paralyse these natural tendencies, which can only be weakened by indirect

measures. On the other hand, when we remember that habitual intoxication, so common in mediæval days amongst the nobles and townsfolk, has grown less and less frequent in those classes (aided by the introduction and rapid diffusion of coffee since the time of Louis XIV.), it is possible to hope that the improvement of economic, intellectual, and moral conditions amongst the populace will gradually succeed in modifying this terrible plague of drink, which cannot be cured all at once.

To continue our illustrations of penal substitutes, we see that the substitution of metallic money for a paper medium decreases the number of forgers, who on the contrary had defied penal servitude for life. False money is more easily detected than a spurious note.15—Money dealers and dealers in precious stones have done more than any punishment to check the crime of usury, as was shown in the case of Spain, after her American conquests; whereas mediæval punishments never prevented the recrudescence of usury in one form or another. Popular and Agricultural Credit Banks, which are practically within the reach of all, are more efficacious against usury in our own days than the special repressive laws enacted once more in Germany and Austria, under the influence of the old illusion.—With the diminution of interest on the public funds the stream of capital has been diverted into commerce, manufactures, and agriculture, thus warding off stagnation, with the

bankruptcies, forgeries, frauds, &c., which result therefrom.—The adjustment of salaries to the needs of public officials, and to general economic conditions, stems the tide of corruption and embezzlement, which were partly due to their concealed poverty.—Limited hours of duty for the responsible services on which the safety of the public depends, as for instance in railway stations, are far more serviceable in preventing accidents than the useless punishment of those who are guilty of manslaughter.—High-roads, railways, and tramways disperse predatory bands in rural districts, just as wide streets and large and airy dwellings, with public lighting and the destruction of slums, prevent robbery with violence, concealment of stolen goods, and indecent assaults.—Inspection of workshops and shorter hours for children's labour, with their superintendence of married women, may be a check on indecent assaults, which penal servitude does not prevent.—Cheap workmen's dwellings, and general sanitary measures for houses both in urban and rural districts, care being taken not to crowd them with poor families, tend to physical health, as well as to prevent many forms of immorality.—Co-operative and mutual societies, provident societies and insurance against old age, funds for sick and infirm workmen, employers' liability for accidents during work, from machinery or otherwise; popular savings' banks, charity organisation societies and the like, obviate a large number of offences against property and the person much better than a penal code.—I have maintained in the Italian Parliament that the reform of religious charities, which in Italy represent funds to the amount of two milliards, might lead to the prevention of crime.—Measures for the discouragement of mendicity and vagrancy, above all agricultural colonies, as in Holland, Belgium, Germany, and Austria, would be the best penal substitute for the very frequent offences committed by vagabonds. Thus it may be concluded that a prudent social legislation, not stopping short at mere superficial and perfunctory reforms, might constitute a genuine code of penal substitutes, which could be set against the mass of criminal impulses engendered by the wretched conditions of the most numerous classes of society.

II. In the Political Sphere.—For the prevention of political crime, such as assassination, rebellion, conspiracies, civil war, arbitrary repression and prevention by the police are powerless; there is no other means than harmony between the Government and the national aspirations. Italy has been a conspicuous example of this, for under the rule of the foreigner, neither the scaffold nor the galleys could hinder political outrages, which have disappeared with national independence. So with Ireland and Russia. Germany, which believed that it could stamp out socialism by exceptional penal laws, discovered its mistake.—For so-called press offences (which are either ordinary offences committed by the aid of the press, or are not offences at all), nothing but freedom of opinion can render attacks and provocations of a political type less frequent.—Respect for the law spreads through a nation by the example on the part of the governing classes and authorities of constant

respect for the rights of individuals and associations, far better than by policemen and prisons.—Electoral reform adapted to the condition of a country is the only remedy against electoral offences.— Similarly, in addition to the economic reforms already indicated, political and parliamentary reforms are much more serviceable than the penal code in preventing many offences of a social and political type, provided that a more real harmony has been established between a country and its lawful representation, and that the latter is freed from the occasions and the forms which lead to its abuse, by removing technical questions from injurious political influences, and giving the people a more direct authority over public affairs, including the referendum.—Finally, that great mass of crimes, isolated or epidemic, evolved by unsatisfied needs and the neglect of separate divisions of a country, which differ in climate, race, traditions, language, customs, and interests, would be largely eliminated if we were to dispense with the vague folly of political symmetry and bureaucratic centralisation, and in their place to adapt the laws to the special features of the respective localities. National unity in no way depends upon legislative and administrative uniformity, which is merely its unhealthy exaggeration. It is indeed inevitable that laws, which in our day merely represent a mode of contact between the most varied moral, social and economic conditions of different localities, should always be inadequate to social needs—too restricted and slow in action for one part of the country, too sweeping and premature for another part, just as the average convict's garb is too long for those who are short, and too short for those who are tall. Administrative federation with political unity (e pluribus unum) would furnish us with an aggregate of penal substitutes, restoring to each part of the social organism that freedom of movement and development which is a universal law of biology and sociology—for an organism is but a federation too lightly appreciated by the advocates of an artificial uniformity, such as ends by conflicting with unity itself.

III. In the Scientific Sphere.—The development of science, which creates fresh instruments of crime, such as fire-arms, the press, photography, lithography, new poisons, dynamite, electricity, hypnotism, and so forth, sooner or later provides the antidote also, which is more efficacious than penal repression.— The press, anthropometric photography of prisoners, telegraphy, railways, are powerful auxiliaries against crime.—Dissection and the progress of toxicology have decreased the number of poisoning cases; and experience has already proved that "Marsh's preparation" has rendered poisoning by arsenic, once so common, comparatively rare.—A similar process has recently been suggested as a means of detection in cases of forgery, for when documents are exposed to iodine vapour, effaced or altered writing is restored.—Women doctors will diminish the opportunities of immorality.—The free expression of opinion will do more to prevent its possible dangers than trials of a more or less scandalous kind.—Piracy, which

was not extirpated by punishments which are now obsolete, is disappearing under the effects of steam navigation.—The spread of Malthusian ideas prevents abortion and infanticides.16—Systematic bookkeeping, by its clearness and simplicity, obviates many frauds and embezzlements, which were encouraged by the old complicated methods.—Cheques, by avoiding the necessity of frequent conveyance of money, do more to prevent theft than punishments can do.—The credentials given by some banks to their clerks, whose duty it is to witness the signature of the actual debtor, prevent the falsification of bills.—Certain bankers have adopted the practice of taking an instantaneous photograph of every one presenting cheques for large amounts.—Safes, bolts, and alarm-bells, are a great security against thieves. —As a preventive of murder in railway carriages, it has been found that alarm signals and methods of securing the carriage-doors from the inside, are more effectual than penal codes.

IV. In the Legislative and Administrative Sphere.—Wise testamentary legislation prevents murders through the impatient greed of next-of-kin, as in France during a former age, with what was known as "succession powder."—A law to facilitate the securing of paternal assent for the marriage of children (as suggested by Herschel in his "Theory of Probabilities") in countries which require the assent of both parents, and for affiliation and breach of promise of marriage, with provision for children born out of wedlock, are excellent as against concubinage, infanticide, abortion, exposure of infants, indecent assaults, and murders by women abandoned after seduction. On this head Bentham said that concubinage regulated by civil laws would be less mischievous than that which the law does not recognise but cannot prevent.—Cheap and easy law is a preventive of crimes and offences against public order, the person and property, as I have already said.—The ancient Italian institution of Advocate of the Poor, if substituted for the present illusory assistance by the courts, would prevent many acts of revenge. So also would a strict and speedy indemnity for the victims of other men's crimes, intrusted to a public minister when the injured person is not able to resort to the law; for as I have maintained, with the approval of sundry criminal sociologists, civil responsibility for crime ought to be

as much a social obligation as penal responsibility, and not a mere private concern.—Simplification of the law would prevent a large number of frauds, contraventions, &c., for, apart from the metaphysical and ironical assertion that ignorance of the law excuses no man, it is certain that our forest of codes, laws, decrees, regulations and so forth, leads to endless misapprehensions and mistakes, and therefore to contraventions and offences.—Commercial laws on the civil responsibility of directors, on bankruptcy proceedings and the registration of shareholders, on bankrupts' discharges, on industrial and other exchanges, would do more than penal servitude to prevent fraudulent bankruptcy.—Courts of honour, recognised and regulated by law, would obviate duels without having recourse to more or less serious punishments.—A well organised system of conveyancing checks forgery and fraud, just as registration offices have almost abolished the palming and repudiation of children, which were so common in mediæval times. Deputy Michelin, in order to discourage bigamy, proposed in 1886 to institute in the registers of births for every commune a special column for the civil standing of each individual, so that any one who contemplated marriage would have to produce a certificate from this register, and thus would be unable to conceal a previous marriage which had not been dissolved by death or divorce.—The form of indictment by word of mouth in penal procedure has prevented many calumnies and false charges.—Foundling and orphan homes, or, still better, some less old-fashioned substitute, such as lying-in hospitals and home attendance for young mothers, might do much to prevent infanticide and abortion, which are not checked by the severest punishment.—Prisoners' aid societies, especially for the young, might be useful as penal substitutes, although much less so than is generally alleged, with plenty of eloquence and little practical work. There is always this strong objection to them, that we ought to succour workmen who continue honest in spite of their wretchedness before those who have been in prison; and again, in place of bestowing patronage on released prisoners without distinction, many of whom are incorrigible, we ought to select the occasional criminals and criminals of passion, who alone are capable of amendment; and assisting them we should avoid anything like police formalities. As a matter of fact it appears that, even in England, where these societies are most active, their intervention, like all direct charity, is too far below the needs of those for whom provision is necessary.

V. In the Sphere of Education.—It has been proved that mere book education, whilst it is useful in rendering certain gross frauds more difficult, in extending a knowledge of the laws, and above all in diminishing improvidence, so characteristic of the occasional criminal, is far from being the panacea of crime which people imagined when they found in the criminal statistics a large proportion of illiterate prisoners. It must also be said that schools which are not closely inspected are frequently hotbeds of immorality. It is necessary, therefore, to rely on the influence of a wider education, limited

though this may be in its turn. I do not mean a mechanical instruction in moral maxims, appealing to the intelligence without reaching the feelings, but rather of the examples afforded by every kind of social institution, by the government and the press, by the school of the stage and of public entertainments.—It would be well, however, to abolish certain vulgar and sensual entertainments, and to substitute for them wholesome amusements and exercises, public baths, properly superintended, and so built as to render private meetings impossible, cheap theatres, and so forth. Thus the prohibition of cruel spectacles, and the suppression of gambling houses, are excellent penal substitutes.—The experimental method in the teaching of children, which applies the laws of physio-psychology, according to the physical and moral type of each pupil, and by giving him less of archaology, and more knowledge serviceable in actual life, by the mental discipline of the natural sciences, which alone can develop in him a sense of the actual, such as our classical schools only enfeeble, would adapt men better for the struggle of existence, whilst diminishing the number of those left without occupation, who are the candidates of crime.—Many of the causes of crime would be nipped in the bud by checking degeneration through physical education of the young, as well as by preventing demoralisation by means of the education of abandoned children, at such institutions as the workhouse, ragged and industrial schools, so well developed in England—or, still better, by the boarding out of children, so as to avoid overcrowding.—One class of inducements to crime would be eliminated by restrictions imposed on scandalous publications which concern themselves exclusively with crime, having no other object than to trade upon the most brutal passions, and which are allowed to exist under an abstract conception of liberty, save that the responsible conductors are punished when the evil has been done.—Similarly there ought to be some restriction upon the right of admission to police-courts and assizes, where our women hustle each other as the Roman women of the decline scrambled to be present at the imperial circus-shows, and where our young men and our hardened criminals receive lessons in the art of committing crimes with greater smartness and precaution.

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

the budget of crime as they frame that of the national revenue and expenditure."

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

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

It is precisely on this point that the practical, rather than the merely theoretical, differences between the positive and the classical schools of penal law become evident. Whilst we believe that social reforms

and other measures suggested by a study of the natural factors of crime are most effective in preventing crime, legislators, employing the a priori method of the classical school, have for many years past been discussing proposed penal codes, whilst they permit criminality to make steady progress. It is another case of Dum Romæ consulitur, Saguntum expugnatur.

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

The positive theory of penal substitutes, apart from any particular example, aims precisely at furnishing a mental discipline for legislators, and bringing home to them the duty of constant reinforcements of social prevention, no matter how difficult it may be, before the evil comes to a head, and forces them too late to a course of repression which is as easy as it is fallacious. No doubt it is vexatious and difficult, even in private life, to be perpetually living up to rules of health; and it is easier, if more dangerous, to forget them, and to fly, when the mischief declares itself, to drugs which are too frequently deceptive; but it is just the want of forethought, both public and private, which it is so important to overcome. And as hygienic science was not possible as a theory or as a practice until after

the experimental observations and physio-pathology on the causes of disease, especially of epidemic and infectious diseases, together with the discoveries of M. Pasteur, who created bacteriology; so social hygiene as against crime was only possible as a theory, and will not be so as a practice, till the diffusion of the facts of biology and criminal sociology relating to the natural causes of crime, especially of occasional crime.

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

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

It is just from these laws of social physiology and pathology that we derive the notion of penal substitutes, which at the same time we must not dissociate from the law of criminal saturation. For if it is true that by modifying the social factors we can produce an effect on the development of crime, and especially of occasional crime, it is also true, unfortunately, that in every social environment there is always a minimum

of inevitable criminality, due to the influence of the other factors, biological and physical. Otherwise we might easily fall into the opposite and equally fallacious illusion of thinking that we could absolutely suppress all crimes and offences. For it is easy to reach on one side the empiric idea of penal terrorism, and on the other side the hasty and one-sided conclusion that to abolish some particular institution would get rid of its abuses. The fact is that we must consider before all things whether it is not a less evil to put up with institutions, however inconvenient, and to reform them, than to forfeit all the advantages which they afford. And it must above all be borne in mind that as society cannot exist without law, so law cannot exist without offences against the law. The struggle for existence may be fought by honest or economic activity, or by dishonest and criminal activity. The whole problem is to reduce to a minimum the more or less criminal rufflings and shocks, yet without disturbing "social order," amidst the indifference or servility of a spiritless people, or resorting to policemen and prisons on every slight occasion.

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

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

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

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

I will myself add a criticism of the theory of penal substitutes, and it is that they are difficult of application. We have only to think of the immense force of inertia in the habits, traditions and interests which have to be overcome before we can secure the appli

cation, not of all, but of any one of the penal substitutes which I have enumerated. And some of these are not simple, or based on a single principle, but comprise an assemblage of co-ordinated reforms, like the prevention of drunkenness, the protection of abandoned children, the accessibility of justice, and so forth.

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

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

My answer to the second objection is that the importance of taking measures to prevent crime has certainly been dwelt upon, especially from the time of Montesquieu and Beccaria, but it has been only by

way of platonic and isolated declaration, with no such systematic development as might have given them practical application, based on experimental observations. Moreover, this prevention has always been held as subsidiary to repression, whereas we have arrived at the positive conclusion that prevention, instead of being a mere secondary aid, should henceforth become the primary defensive function of society, since repression has but an infinitesimal influence upon criminality.

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

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

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

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

The legislators for their part have not only neglected the definite teaching of these authors with more than ordinary insight, but they have also enacted what are

really penal substitutes in a clumsy and unscientific manner.

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

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

And this entirely agrees with the universal law of evolution, in virtue of which, amidst the variation of animal and social organisms, antecedent forms are not wholly eliminated, but continue as the basis of the forms which succeed them. So that if the future evolution of the social administration of defence against crime is to consist in the development of the primitive forms of direct physical coercion into the higher forms of indirect psychical discipline of human activity, this

will not imply that the primitive forms must entirely disappear, especially for the gravest crimes, which, in the biological and psychological conditions of those who commit them, take us back to the primitive epochs and forms of individual and social violence.

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

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