UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 THE INDIVIDUALIZATION 
 OF PUNISHMENT
 
 MODERN CRIMINAL SCIENCE SERIES 
 
 Published under the auspices of the American Institute of Criminal Law 
 
 and Criminology 
 
 1. Modern Theories of Criminality. By C. BERNALDO DE QUIROS, of 
 Madrid. Translated from the Second Spanish Edition, by Dr. ALPHONSO DE 
 SALVIO, Assistant Professor of Romance Languages in Northwestern University. 
 With an American Preface by the Author, and an Introduction by W. W. 
 SMiTHERSj Esq., of Philadelphia, Secretary of the Comparative Law Bureau of 
 the American Bar Association. 
 
 2. Criminal Psychology. By HANS GROSS, Professor of Criminal Law in 
 the University of Graz, Austria, Editor of the " Archives of Criminal Anthro- 
 pology and Criminalistics," etc. Translated from the Fourth German edition, 
 by Dr. HORACE M. KALLEN, Lecturer in Philosophy in Harvard University. 
 With an American Preface by the Author, and an Introduction by JOSEPH 
 JASTROW, Professor of Psychology in the University of Wisconsin. 
 
 3. Crime, Its Causes and Remedies. By CESARE LOMBROSO, late Pro- 
 fessor of Psychiatry and Legal Medicine in the University of Turin, author of 
 the " Criminal Man," etc., Founder and Editor of the " Archives of Psychiatry 
 and Penal Sciences." Translated from the French and German editions by Rev. 
 HENRY P. HORTON, M. A., of Columbia, Mo. With an Introduction by 
 MAURICE PARMELEE, Associate Professor of Sociology in the University of 
 Missouri. 
 
 4. The Individualization of Punishment. By RAYMOND SALEILLES, 
 Professor of Comparative Law in the University of Paris. Translated from the 
 Second French edition, by Mrs. RACHAEL SZOLD JASTROW, of Madison, Wis. With 
 an Introduction by ROSCOE POUND, Professor of Law in Harvard University. 
 
 5. Criminal Sociology. By ENRICO FERRI, Member of the Roman Bar, 
 and Professor of Criminal Law and Procedure in the University of Rome, Editor 
 of the " Archives of Psychiatry and Penal Sciences," the " Positivist School in 
 Penal Theory and Practice," etc. Translated from the Fifth Italian, and Second 
 French edition, by JOSEPH I. KELLY, Esq., of Chicago, formerly Lecturer on 
 Roman Law in Northwestern University and Dean of the Faculty of Law in the 
 University of Louisiana. With an American Preface by the Author, and an In- 
 troduction by CHARLES A. ELLWOOD, Professor of Sociology in the University 
 of Missouri. 
 
 6. Penal Philosophy, By GABRIEL TARDE, Late Magistrate in Picardy, 
 Professor of Modern Philosophy in the College of France, and Lecturer in the 
 Paris School of Political Science. Translated from the Fourth French edition, by 
 RAPELJE Ho WELL, Esq., of the Bar of New York City. With an Introduction 
 by ROBERT H. GAULT, Assistant Professor of Psychology in Northwestern Uni- 
 versity, and Managing Editor of the Journal of the Institute. 
 
 7. Criminality and Economic Conditions. By W. A. BONGER, Doctor in 
 Law of the University of Amsterdam. Translated from the French by HENRY P. 
 HORTON, M. A., of Ithaca, N. Y., and VICTOR VON BOROSINI, of Chicago, 111. 
 
 8. Criminology. By RAFPAELLE GAROPALO, former President of the Court of 
 Appeals of Naples. Translated from the First Italian and the Fifth French 
 edition, by ROBERT W. MILLAR, Esq., of Chicago, Lecturer in Northwestern 
 University Law School. 
 
 9. Crime and Its Repression. By GusTAV AscHAPPENBURQ, Professor of 
 Psychiatry in the Academy of Practical Medicine at Cologne, Editor of the 
 " Monthly Journal of Criminal Psychology and Criminal Law Reform." Trans- 
 lated from the Second German edition by ADALBERT ALBRECHT, of South Easton > 
 Mass.
 
 THE MODERN CRIMINAL SCIENCE SERIES 
 
 Published under the Auspices of 
 THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY 
 
 The Individualization of 
 Punishment 
 
 BY RAYMOND SALEILLES 
 
 Professor of Comparative Law in the University of Paris 
 and in the College of Social Science 
 
 WITH AN INTRODUCTION BY GABRIEL TARDE 
 
 Late Magistrate in Picardu and Professor of Philosophy 
 in the College of France 
 
 Translated from the second French edition by 
 RACHEL SZOLD JASTROW 
 
 With an Introduction by 
 
 ROSCOE POUND 
 
 Professor of Law in Harvard University 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 1911
 
 p* 
 
 Sa 
 
 COPYRIGHT, 1911, 
 BY LITTLE, BROWN, AND COMPANY. 
 
 All rights reserved
 
 GENERAL INTRODUCTION TO THE 
 MODERN CRIMINAL SCIENCE SERIES. 
 
 AT the National Conference of Criminal Law and Crim- 
 inology, held in Chicago, at Northwestern University, in 
 June, 1909, the American Institute of Criminal Law and 
 Criminology was organized; and, as a part of its work, the 
 following resolution was passed: 
 
 " Whereas, it is exceedingly desirable that important 
 treatises on criminology in foreign languages be made readily 
 accessible in the English language, Resolved, that the presi- 
 dent appoint a committee of five with power to select such 
 treatises as in their judgment should be translated, and to 
 arrange for their publication." 
 
 The Committee appointed under this Resolution has made 
 careful investigation of the literature of the subject, and has 
 consulted by frequent correspondence. It has selected 
 several works from among the mass of material. It has 
 arranged with publisher, with authors, and with transla- 
 tors, for the immediate undertaking and rapid progress of 
 the task. It realizes the necessity of educating the profes- 
 sions and the public by the wide diffusion of information on 
 this subject. It desires here to explain the considerations 
 which have moved it in seeking to select the treatises best 
 adapted to the purpose. 
 
 For the community at large, it is important to recognize 
 that criminal science is a larger thing than criminal law. 
 The legal profession in particular has a duty to familiarize 
 itself with the principles of that science, as the sole means 
 for intelligent and systematic improvement of the criminal 
 law.
 
 vi GENERAL INTRODUCTION 
 
 Two centuries ago, while modern medical science was still 
 young, medical practitioners proceeded upon two general 
 assumptions: one as to the cause of disease, the other as to 
 its treatment. As to the cause of disease, disease was sent 
 by the inscrutable will of God. No man could fathom that 
 will, nor its arbitrary operation. As to the treatment of 
 disease, there were believed to be a few remedial agents of 
 universal efficacy. Calomel and blood-letting, for example, 
 were two of the principal ones. A larger or smaller dose of 
 calomel, a greater or less quantity of bloodletting, this 
 blindly indiscriminate mode of treatment was regarded as 
 orthodox for all common varieties of ailment. And so his 
 calomel pill and his bloodletting lancet were carried every- 
 where with him by the doctor. 
 
 Nowadays, all this is past, in medical science. As to the 
 causes of disease, we know that they are facts of nature, 
 various, but distinguishable by diagnosis and research, 
 and more or less capable of prevention or control or counter- 
 action. As to the treatment, we now know that there are 
 various specific modes of treatment for specific causes or 
 symptoms, and that the treatment must be adapted to the 
 cause. In short, the individualization of disease, in cause and 
 in treatment, is the dominant truth of modern medical science. 
 
 The same truth is now known about crime; but the under- 
 standing and the application of it are just opening upon us. 
 The old and still dominant thought is, as to cause, that a 
 crime is caused by the inscrutable moral free will of the human 
 being, doing or not doing the crime, just as it pleases; abso- 
 lutely free in advance, at any moment of time, to choose or 
 not to choose the criminal act, and therefore in itself the 
 sole and ultimate cause of crime. As to treatment, there 
 still are just two traditional measures, used in varying doses 
 for all kinds of crime and all kinds of persons, jail, or a 
 fine (for death is now employed in rare cases only). But 
 modern science, here as in medicine, recognizes that crime
 
 GENERAL INTRODUCTION vii 
 
 also (like disease) has natural causes. It need not be asserted 
 for one moment that crime is a disease. But it does have 
 natural causes, that is, circumstances which work to pro- 
 duce it in a given case. And as to treatment, modern science 
 recognizes that penal or remedial treatment cannot possibly 
 be indiscriminate and machine-like, but must be adapted 
 to the causes, and to the man as affected by those causes. 
 Common sense and logic alike require, inevitably, that the 
 moment we predicate a specific cause for an undesirable 
 effect, the remedial treatment must be specifically adapted 
 to that cause. 
 
 Thus the great truth of the present and the future, for 
 criminal science, is the individualization of penal treatment, 
 for that man, and for the cause of that man's crime. 
 
 Now this truth opens up a vast field for re-examination. 
 It means that we must study all the possible data that can 
 be causes of crime, the man's heredity, the man's physi- 
 cal and moral make-up, his emotional temperament, the 
 surroundings of his youth, his present home, and other 
 conditions, all the influencing circumstances. And it 
 means that the effect of different methods of treatment, old 
 or new, for different kinds of men and of causes, must be 
 studied, experimented, and compared. Only in this way 
 can accurate knowledge be reached, and new efficient meas- 
 ures be adopted. 
 
 All this has been going on in Europe for forty years past, 
 and in limited fields in this country. All the branches of 
 science that can help have been working, anthropology, 
 medicine, psychology, economics, sociology, philanthropy, 
 penology. The law alone has abstained. The science of 
 law is the one to be served by all this. But the public in gen- 
 eral and the legal profession in particular have remained 
 either ignorant of the entire subject or indifferent to the 
 entire scientific movement. And this ignorance or indiffer- 
 ence has blocked the way to progress in administration.
 
 viii GENERAL INTRODUCTION 
 
 The Institute therefore takes upon itself, as one of its aims, 
 to inculcate the study of modern criminal science, as a press- 
 ing duty for the legal profession and for the thoughtful 
 community at large. One of its principal modes of stimulat- 
 ing and aiding this study is to make available in the English 
 language the most useful treatises now extant in the Con- 
 tinental languages. Our country has started late. There 
 is much to catch up with, in the results reached elsewhere. 
 We shall, to be sure, profit by the long period of argument 
 and theorizing and experimentation which European thinkers 
 and workers have passed through. But to reap that profit, 
 the results of their experience must be made accessible in 
 the English language. 
 
 The effort, in selecting this series of translations, has been 
 to choose those works which best represent the various schools 
 of thought in criminal science, the general results reached, 
 the points of contact or of controversy, and the contrasts of 
 method having always in view that class of works which 
 have a more than local value and could best be serviceable 
 to criminal science in our country. As the science has vari- 
 ous aspects and emphases the anthropological, psychologi- 
 cal, sociological, legal, statistical, economic, pathological 
 due regard was paid, in the selection, to a representation of 
 all these aspects. And as the several Continental countries 
 have contributed in different ways to these various aspects, 
 France, Germany, Italy, most abundantly, but the others 
 each its share, the effort was made also to recognize the 
 different contributions as far as feasible. 
 
 The selection made by the Committee, then, represents 
 its judgment of the works that are most useful and most 
 instructive for the purpose of translation. It is its conviction 
 that this Series, when completed, will furnish the American 
 student of criminal science a systematic and sufficient ac- 
 quaintance with the controlling doctrines and methods 
 that now hold the stage of thought in Continental Europe.
 
 GENERAL INTRODUCTION be 
 
 Which of the various principles and methods will prove 
 best adapted to help our problems can only be told after 
 our students and workers have tested them in our own ex- 
 perience. But it is certain that we must first acquaint our- 
 selves with these results of a generation of European thought. 
 In closing, the Committee thinks it desirable to refer the 
 members of the Institute, for purposes of further investiga- 
 tion of the literature, to the " Preliminary Bibliography of 
 Modern Criminal Law and Criminology " (Bulletin No. 1 
 of the Gary Library of Law of Northwestern University), 
 already issued to members of the Conference. The Com- 
 mittee believes that some of the Anglo-American works 
 listed therein will be found useful. 
 
 COMMITTEE ON TRANSLATIONS. 
 Chairman, JOHN H. WIGMOBE, 
 
 Professor of Law in Northwestern University, Chicago. 
 
 ERNST FREUND, 
 
 Professor of Law in the University of Chicago. 
 
 MAURICE PARMELEE, 
 
 Professor of Sociology in the State University of 
 Missouri. 
 
 ROSCOE POUND, 
 
 Professor of Law in Harvard University. 
 ROBERT B. SCOTT, 
 
 Formerly Professor of Political Science in the State 
 University of Wisconsin. 
 
 WM. W. SMITHERS, 
 
 Secretary of the Comparative Law Bureau of the 
 American Bar Association, Philadelphia, Pa.
 
 INTRODUCTION TO THE ENGLISH 
 VERSION 
 
 WHEN Sir James Stephen spoke, not without praise, of the 
 absence of general theories good or bad which distinguished 
 the law of England, he stated a half -truth only. It is true 
 that in Anglo-American law, more than in other systems, 
 juristic theories come after lawyer and judge have dealt 
 with concrete cases and have in some measure learned how 
 to dispose of them. But it is also true that such theories 
 go before our law-making, as they precede law-making else- 
 where. They are developed consciously or subconsciously 
 before the legislator, or under our system of case law the 
 judge, formulates the rules by which future causes are to be 
 governed. Hence we have a general theory of crime and 
 of punishment in our Anglo-American common law and in 
 our penal codes; and, although we are coming to have legis- 
 lation here and there proceeding upon other theories, the 
 latter fits with difficulty into a system of legislation and of 
 judicial decision in which that general theory is consistently 
 developed. Moreover, thinking men have agreed long ago 
 that it is not a good one. For the theory of our common 
 law and of our penal codes is the classical theory. This 
 theory, intrenched in our bills of rights and in common-law 
 juristic thinking, as well as formulated in our penal codes 
 and the decisions construing them, is to-day a formidable 
 obstacle in the way of modern legislation, as the conflict 
 over construction of statutes requiring action at one's peril, 
 the fate of the statute of Washington as to the defense of
 
 Xii INTRODUCTION TO THE ENGLISH VERSION 
 
 insanity, and the constitutional difficulties encountered by 
 probation laws abundantly bear witness. Not many years 
 ago a learned Supreme Court released a child from a reform- 
 atory on the ground that a reformatory was a prison, that 
 commitment thereto was necessarily punishment for crime, 
 and hence that such commitment could be warranted only 
 by criminal proceedings of a formal type, conducted with 
 due regard to constitutional safeguards. The rise of Juve- 
 nile Courts, justified to the lawyer by the fortunate historical 
 circumstance of the jurisdiction of the Chancellor over infants, 
 has now accustomed us to courts of criminal equity for the 
 youthful offender; but attempts to introduce any system of 
 individualization for the adult will have to wrestle a long 
 time with constitutional provisions. 
 
 Professor Saleilles' account of the relation of the classical 
 theory to French penal legislation should be of especial 
 interest in America. Substantially all that he says as to 
 the Penal Codes of 1791 and 1810 applies equally to our 
 criminal legislation. For the New York legislators had the 
 French Code of 1810 before them. Livingston's discussions, 
 based on French sources, were known to them, and the theories 
 on which the French legislation proceeded were familiar and 
 congenial. It follows that the American criminalist has little 
 to add. Perhaps two points deserve notice. In the first 
 place, the desire to preclude arbitrary judicial action was 
 especially strong in America because in the hands of ap- 
 pointees of the Crown the criminal law had been found an 
 efficient engine of political and religious persecution. Un- 
 happily, our law as to misdemeanors had developed in the 
 court of Star Chamber, and the contests between the common- 
 law courts and the Crown in the seventeenth century had 
 convinced the next age that there was no safety except in 
 hard and fast legal formulas applied mechanically. So sure 
 of this were the lawyer and the publicist of the end of the 
 eighteenth century, that in our bills of rights they gave us 
 political and philosophical charts, to which all future govern- 
 mental action must be made to conform, and they believed 
 them to be merely declaratory of doctrines inhering in the
 
 INTRODUCTION TO THE ENGLISH VERSION xiii 
 
 very idea of justice. The popularity of the common law in 
 America did not extend to the substantive part of the crim- 
 inal law. Very early by legislation or judicial decision our 
 commonwealths began to adopt the doctrine that there must 
 be chapter and verse of the written law behind every punish- 
 ment. Thus the unfortunate political conditions that have 
 made the Star Chamber a synonym for arbitrary and op- 
 pressive administration of punitive justice will long stand in 
 the way of a revived "court of criminal equity." But in 
 France also the classical theory was a reaction against abuse 
 of absolute power. In consequence the American reader 
 will find the author in sympathy with the views which have 
 come to us through our legal history. For our experience 
 has not been unique. It is an inherent difficulty in the ad- 
 ministration of punitive justice that criminal law has a much 
 closer connection with politics than has the law of civil relations. 
 There is no great danger of oppression through civil litigation. 
 There is constant fear of oppression through the criminal 
 law. Not only is one class suspicious of attempts by another 
 to force its ideas upon the community under penalty of prose- 
 cution, but the power of a majority to visit with punishment 
 practices which a strong minority consider in no wise ob- 
 jectionable is liable to abuse and, whether rightly or wrongly 
 used, puts a strain upon criminal law and administration. 
 All criminalists must reckon with this difficulty. Perhaps 
 American lawyers insist upon it unduly, to the exclusion of 
 other points of no less importance. But revolutionary France 
 had the same ideas, and by consequence the author canvasses 
 the very objections and discusses the very requirements of 
 legal policy which we also must consider. 
 
 Secondly, we must take account of the part played by 
 Puritanism in the development of Anglo-American law. 
 The relation of Puritanism to the common law is quite as 
 important a part of the philosophical history of our legal 
 system as the relation of Stoic philosophy to Roman law is 
 part of the history of that system. In each case we have to 
 do with the dominant fashion of thinking upon fundamental 
 questions during a critical period of growth. The two grow-
 
 xiv INTRODUCTION TO THE ENGLISH VERSION 
 
 ing periods of our legal system, the two periods in which 
 the rules and doctrines that obtain to-day were formative, 
 were the classical common-law period, the end of the six- 
 teenth and beginning of the seventeenth century, and the 
 American common-law period, the period of legal develop- 
 ment in America that comes to an end after the Civil War. 
 But the age of Coke was the age of the Puritan in England, 
 and the period that ends with our civil war was the age of 
 the Puritan in America. Indeed, he had his own way in 
 America. Here he was in the majority and made institutions 
 to his own liking. It is no accident, therefore, that common- 
 law principles have often attained their most complete 
 logical development in America. Hence the contribution 
 of individualist religious dogma to the criminal law was much 
 greater in America than in France. The individualization 
 in practice which was permitted by the canon-law concep- 
 tion of searching and disciplining the conscience was wholly 
 alien to the Puritan. For above all things he was jealous 
 of the magistrate. If moral questions were to be dealt with 
 as concrete cases to be individualized in their solution, sub- 
 ordination of those whose cases were decided to those who 
 had the power of weighing the circumstances of the concrete 
 case and individualizing the principle to meet that case might 
 result. His idea of "consociation but not subordination" 
 demanded that a fixed, absolute, universal rule, which the 
 individual had contracted to abide, be resorted to. "No- 
 where," says Morley, "has Puritanism done us more harm 
 than hi thus leading us to take all breadth and color and 
 diversity and fine discrimination out of our judgments of 
 men, reducing them to thin, narrow, and superficial pro- 
 nouncements upon the letter of their morality or the precise 
 conformity of their opinions to accepted standards of truth." 
 But this is exactly the method of the classical theory in 
 criminal law. Indeed our common-law jurists have taken 
 it to be fundamental in legal theory. Thus, Amos says: "The 
 same penalty for a broken law is exacted from persons of an 
 indefinite number of shades of moral guilt, from persons of 
 high education and culture, well acquainted with the pro-
 
 INTRODUCTION TO THE ENGLISH VERSION xv 
 
 visions of the law they despise, and from the humblest and 
 most illiterate persons in the country." And, be it noted, 
 he states this as a matter of course, with no hint that we 
 may attain anything better. Thus political events and the 
 Puritanism of nineteenth-century America tightened the 
 hold upon us of a theory which on other grounds for a time 
 was accepted everywhere. For to find a proper mean between 
 a system of hard and fast rules and one of completely indi- 
 vidualized justice is one of the inherent difficulties of all 
 administration of justice according to law. And in the 
 movement to and fro from the over-arbitrary to the over- 
 mechanical, the eighteenth and nineteenth centuries stood 
 for the latter. 
 
 More recently throughout the world there has come to be 
 a reaction against administration of justice solely by abstract 
 formula. In France it appears as a newer and freer method 
 of interpreting the codes. In Germany it takes the form of 
 agitation for "freie Rechtsfindung" In England it is manifest 
 in Lord Esher's farewell speech, in which he thanked God 
 that English law was not a science, in Sir John Hollams's 
 protest against treating the private controversy between 
 John Doe and Richard Roe, not as a cause in which justice 
 is to be done primarily, but primarily as a means by which 
 to settle the law for other litigants, and in the wider discretion 
 which is now accorded to the bench in order to give fuller 
 power of doing justice. In the United States it is manifest 
 in a tendency toward extra-legal attainment of just results 
 while preserving the form of the law. To a large and appar- 
 ently growing extent the actual practice of our application 
 of the law is that jurors or courts take the rules of law as a 
 general guide, determine what the equities of the cause de- 
 mand and contrive to find a verdict or render a judgment 
 accordingly, wrenching the law no more than is necessary. 
 Occasionally we find a judge owning frankly that he looks 
 chiefly at the ethical situation inter paries and does not allow 
 the law to interfere therewith more than is inevitable. Many 
 appellate courts are suspected of ascertaining what the broad 
 equities of a controversy require and justifying a result in
 
 xvi INTRODUCTION TO THE ENGLISH VERSION 
 
 accord therewith by the elaborate ritual of a written opinion. 
 Complaint of this is not uncommon wherever lawyers discuss 
 recent decisions among themselves, and at least one bar 
 association has made it the subject of a resolution. The 
 movement for individualization in criminal law is but a phase 
 of this general movement for individualizing the application 
 of all legal rules. 
 
 The chief reliance of our system toward individualizing 
 the application of law is the power of juries to render general 
 verdicts, the power to find the facts in such a way as to 
 compel a different result from that which the legal rule 
 strictly applied would require. Probably this power alone 
 has made the common law of master and servant tolerable 
 in American jurisdictions in the twentieth century. Yet 
 exercise of this power, with respect to which, as Lord Coke 
 expressed it, the jurors are chancellors, has made the jury 
 a most unsatisfactory tribunal in many classes of cases, and, 
 in view of the practice of repeated new trials, which this power 
 has in large part occasioned, a most expensive one. In crim- 
 inal causes this is even more marked. Exercised in homicide 
 cases, it led to the situation Mark Twain satirized when he 
 called upon the legislature to make insanity a crime. In 
 order to be able to procure convictions at all in cases of homi- 
 cide, many of our jurisdictions leave the penalty to the jury. 
 The penal code of California has such a provision, and a 
 collection of criminal cases published recently by the chief 
 of police of San Francisco enables us to see how the power 
 has been exercised. As one studies the cases he can see to 
 a certain degree that broad lines were drawn by the juries, 
 even if crudely. But one of these lines which is most ap- 
 parent is between picturesque murder, however brutal, 
 and brutal murder without the picturesque element. Then, 
 too, the cases show that the choice of penalty depends very 
 largely on the temper of particular juries. For example, 
 Goldensen, a boy of 19, who suddenly killed a girl of 13, was 
 hung, while Hoff, who brutally murdered a woman who had 
 employed him, having been sentenced to be hung on the 
 first trial, on a second trial, granted for an error of procedure,
 
 INTRODUCTION TO THE ENGLISH VERSION xvii 
 
 was imprisoned for life. In the cases of murder for gain or 
 incident to robbery this is even more apparent. The so- 
 called " gas-pipe " murderers, who were robbers, were hung. 
 So was Kovalev, an escaped Siberian convict, who murdered 
 for gain. But Sontag and Evans, professional bandits, who 
 had committed a long series of train robberies, had killed 
 many and shot many more, were imprisoned for life. So in 
 the case of Dorsey, a stage robber and murderer. Experience 
 elsewhere has been the same. Obviously the crude individual- 
 ization achieved by our juries, and especially by leaving 
 the assessment of penalties to trial juries, involves quite 
 as much inequality and injustice as the mechanical appli- 
 cation of the law by a magistrate. Unchecked jury dis- 
 cretion upon the whole is worse than the unchecked 
 magisterial discretion from which the classical school sought 
 to deliver us. 
 
 What we have to achieve, then, in modern criminal law 
 is a system of individualization, and that this is possible we 
 have the warrant of the experience of courts of equity. In 
 equity we have a system of legal individualization. Every 
 rule has a margin, more or less wide, which admits of discretion 
 in its application to individual causes. As Lord Eldon put 
 it, the doctrines of equity "ought to be as well-settled and 
 made as uniform almost as those of the common law, laying 
 down fixed principles but taking care that they are to be 
 applied according to the circumstances of each case." In 
 equity, too, we have a system of judicial individualization. 
 There is not, as at law, a stereotyped form of judgment which 
 must needs be rendered in every case; but the court has wide 
 powers of adapting the decree to the concrete cause and of 
 doing what will most subserve the ends of justice therein. 
 For the individualization in equity in our system is in its 
 administration rather than in its substance, except as its 
 substance allows this. That rights of property, which are 
 constantly involved in our equity litigation, have not suffered 
 in any wise under such a regime, argues that rights of personal 
 liberty, of which we are at least no less tender, do not require 
 hard and fast formulas administered mechanically in order
 
 xviii INTRODUCTION TO THE ENGLISH VERSION 
 
 to receive full protection. We must not overlook that to-day 
 publicity is the most effective check and balance upon the 
 magistrate. There is much less need of the elaborate tying- 
 down to which our fathers subjected him. 
 
 It will be urged that there are constitutional provisions 
 which preclude any system of legal or judicial individualiza- 
 tion in criminal law in this country. But Professor Saleilles 
 seeks to guard the very interests which our bills of rights are 
 designed to maintain. Hence in large part his discussion of 
 the means of attaining a system of individualization are 
 applicable to us also. Moreover, "unconstitutional" is 
 ceasing to be a word to conjure with. Not long ago we were 
 wont to say "unconstitutional" as Mr. Podsnap said "not 
 English." To-day we are not so sure that the end of the 
 eighteenth century spoke the last word on all fundamental 
 questions of our polity. Where but a short time since it was 
 a commonplace to say that amendments of the federal con- 
 stitution came only through civil war, we now contemplate 
 complacently speedy and peaceful alterations therein without 
 any pressing exigency. As to State constitutions, which are 
 chiefly involved, we are likely to see change become quite 
 easy enough in the near future when there is anything which 
 reasonably demands it. 
 
 With respect to the author, it should be noted that he is 
 primarily a lawyer, writing from a lawyer's standpoint and 
 appreciating, as sociologists and lay criminalists do not at all 
 times appreciate, the purely legal problems of which the lawyer 
 is so acutely aware. As professor in the Faculty of Law of 
 Dijon and afterwards in the Faculty of Law of the University 
 of Paris, his chief labors have been in the field of comparative 
 law, in which he has published, among others, the following 
 important works: fitude sur les sources de 1'obligation dans 
 le pro jet de code civil all em a ml (1889); Du refus de paiement 
 pour inexecution de contrat; Etude du droit compare 
 (1893); Etude sur la theorie generate des obligations dans 
 la seconde redaction du projet de code civil allemand (1895, 
 2d ed. 1901); Les accidents du travail et la responsabilite 
 civile (1897); De la declaration de volonte (1901); De la
 
 INTRODUCTION TO THE ENGLISH VERSION xix 
 
 possession des meubles; Etude de droit allemand et de droit 
 frangais (1907). As to his sociological teaching at the Col- 
 lege libre des Sciences sociales, it will be enough to refer to 
 the appreciation by M. Tarde in the preface to the first 
 edition of the present work. 
 
 ROSCOE POUND. 
 
 HARVARD LAW SCHOOL.
 
 AUTHOR'S PREFACE TO THE SECOND 
 EDITION 
 
 THE first edition of this essay in criminal economics having 
 been exhausted, I was requested to prepare a second. It 
 was difficult to resist so flattering a demand. The text 
 needed thorough revision; and notes and a considerable 
 bibliography were required to place the work in line with 
 the legislative reforms of the past decade, as well as with 
 the movements of thought in legal and sociological literature 
 to which congresses devoted to criminology and related 
 disciplines have given expression. I found it difficult to 
 take up the revision, inasmuch as, for the past ten years, 
 I have transferred my teaching from criminal to civil law, 
 and more particularly, to comparative civil law. It has 
 thus been impossible for me to follow so carefully as formerly 
 the evolution of ideas and systems, or to digest the liter- 
 ature that has accumulated in this field. The state of my 
 health has also required urgent husbanding of my resources 
 and an avoidance of over-exertion. I therefore decided upon 
 a compromise. 
 
 So far as concerned the field of criminal law, it seemed 
 to me that this book, however inadequate, sufficiently well 
 represented the initial stage of a movement that has left 
 its mark upon the history of opinion. It appeared at a time 
 when jurists were confronted, on the one hand, by unprofit- 
 able essays in the field of abstract law, and, on the other,
 
 xxii PREFACE TO SECOND EDITION 
 
 by dangers threatened by reformers, ready, in their dis- 
 regard of the judicial attitude, to replace law by sociology. 
 They thus attempted to establish a "middle ground," in 
 which effort they may be said to have achieved creditable 
 success. 
 
 This new spirit found expression in recent legislative re- 
 forms and support in congresses of criminology, but it was 
 left for the initiative of medical associations (such as that 
 of Geneva, 1907) and the contributions of eminent scholars 
 (such as Dr. Grasset of the University of Montpellier) to 
 bring about a more intimate affiliation between law and 
 anthropology, and between law and sociology. 1 
 
 Parallel with this advance, the Italian school, at least 
 in regard to its more extreme tenets, became scientifically 
 discredited. The demands of law and order and security 
 gained ground. Even in the radical socialistic position the 
 conception of law encroached upon the merely empirical 
 attitude towards social realities as accidents, or as responses 
 to the crude demands of impulse. There was a mutual 
 tendency for the law to consider social facts, and for the 
 facts to fall in with the conventions of the law. Nowhere 
 does this tendency appear so convincingly as in criminal law. 
 
 The views expressed in this book were first formulated 
 in connection with a popular course which I conducted at 
 the College of Social Sciences ; they record the initial 
 stages of a movement that has since then developed to a not- 
 able position. To convey an exact impression of the present 
 status of the subject and to indicate in detail the altered 
 developments of recent origin would involve the preparation 
 
 1 See certain characteristic passages, particularly the fourth lecture, in 
 "Les Psychonevroses et leur traitement moral," by Dr. Dubois, professor in 
 the University of Berne (Paris, Masson). [English translation: "The Psychic 
 Treatment of Nervous Disorders." Funk & Wagnalls Co., 1908.]
 
 PREFACE TO SECOND EDITION xxiii 
 
 of an entirely new book. This is not what I was asked to 
 do. I decided to retain the chapters which had their initia- 
 tive ten years ago and to look upon them somewhat as an 
 expression of the period, as reflecting a phase of legal thought; 
 for therein lies their worth. In themselves they may now 
 have but slight value ; as an historical document they may 
 still be of use. Therefore I have retained the text almost 
 intact. 
 
 On many issues the volume no longer represents the views 
 of contemporary science ; on some issues, it no longer 
 exactly expresses my own opinion, or at least, not as I should 
 now express myself if I were called to give my views. For 
 example, in regard to the application of the indeterminate 
 sentence, I might have other reservations than those pre- 
 sented in 1898. 
 
 This explains why the essay retains the character and the 
 form of its first appearance ; it expressed the legitimate 
 position of the period and what I myself held in 1898, and 
 nothing more. The change of date of the present edition 
 is not intended to indicate a final point of crystallization, 
 either in the advance of opinion or in the conviction of the 
 author, nor to imply that the trend of these studies has lost 
 its plasticity. Though the fundamental positions remain 
 the same, account should be taken of the change of date, 
 if only to indicate that institutions have changed, that laws 
 have been revised, and that the literature has considerably 
 increased. It seemed to me adequate to recognize this by 
 adding brief notes in the text, and particularly at the end 
 of the chapters. These offer not a complete bibliography 
 of the subject up to the present time, but merely an indi- 
 cation of a few of the principal works containing complete 
 references. 
 
 For reasons already mentioned I found it difficult to take
 
 xxiv PREFACE TO SECOND EDITION 
 
 up the task of summarizing and compiling; and I accepted 
 the kind offer of co-operation from M. Gaston Morin, my 
 able assistant in the Paris Faculty of Law, whose special 
 interests keep him in touch with the bibliography of criminal 
 law. In associating his work with mine, I followed the ex- 
 ample instituted some years ago in the Faculty of Paris 
 by my distinguished colleagues, MM. Le Poittevin, 
 Garcpn, and Thaller. They introduced practical confer- 
 ences and co-operative research of a distinctly scientific 
 grade, and thus established a profitable collaboration of 
 professors and students, in which the direction of the work 
 retained its recognizable authorship yet left a free and fertile 
 opportunity for individual initiative. It is well to draw 
 wider attention to these first attempts at such co-operation 
 in our Faculties of Law, and to recognize its advantages. 
 This change in method and attitude within the higher legal 
 education bespeaks well for the future. 
 
 I appreciate that the advantages of the present collab- 
 oration are in my favor. I do not mean to imply that my 
 efforts are on a par with the very successful ventures of 
 my colleagues. I refer to them only to commend their meth- 
 ods and to indicate that I hold it desirable to follow, however 
 remotely, in their footsteps, yet without assuming to a like 
 success, at least so far as my own contribution is concerned. 
 As for the assistance rendered me, of which I have reaped 
 the benefits, I wish to express to M. Gaston Morin my sin- 
 cere and profound gratitude. 
 
 The circumstances that turned my career to a somewhat 
 different line of study and instruction explain my inability 
 to carry out the project contemplated when I first pub- 
 lished this book. I referred there to my intention to issue, 
 under the title of "Problemes de Politique criminelle, " 
 a series of legal and sociological studies covering some of the
 
 PREFACE TO SECOND EDITION xxv 
 
 important problems in the science of criminal law. I wished 
 particularly to resume and pursue more thoroughly my 
 first studies upon the question of "La tentative et du delit 
 impossible." I was strongly encouraged by the conclusions 
 accepted on this subject by such authorities as M. Garraud 
 (in the last edition of his text-book) and M. Garc.cn (in his 
 annotations of the penal code); and, if I may be permitted 
 to say so, by the support thus given to the principles and 
 ideas which I had set forth. I must also mention the ex- 
 cellent contributions to the same subject published in Ger- 
 many by M. Ernest Delaquis. 
 
 But I was particularly drawn to the important problem 
 of "Complicite et du delit collectif, " and finally to a very 
 live question of the day, that of " Responsibilite attenuee." 
 My course in Criminal Law for the candidates for the doc- 
 torate of law had reached these topics, when I was offered 
 the chair of Civil Law, unexpectedly vacant, from which I 
 soon transferred to the course in Comparative Civil Law. 
 
 I promptly realized that it would be difficult to pursue 
 these several lines of study simultaneously, and that my 
 promises were likely to be most imperfectly fulfilled. I am 
 not sure that the volume on Criminal Law will ever appear; 
 and in the present edition I have omitted any reference 
 which, in any case, would be premature to what I had 
 proposed to say on the questions there to be considered. 
 As the preparation of this new edition may thus be my last 
 scientific contribution in the field of criminal law, I wish 
 to pay my tribute to one to whom we are largely indebted 
 for the considerable progress of legal science in this field, 
 one whom I, more than any one else, have particular reason 
 to remember, because it was he who encouraged my first 
 attempts and introduced to the public the book which I 
 now republish. I refer to M. Gabriel Tarde, the distin-
 
 xxvi PREFACE TO SECOND EDITION 
 
 guished sociologist, a scholar of profound and original views, 
 of fertile imagination and brilliant insight, who opened new 
 paths in many directions and left a permanent impression 
 wherever he ventured. He passed away at a time when 
 his aid would have been most helpful in establishing between 
 the position of the law and that of sociology the reconciliation 
 here favored. In this respect, as in many another, his loss 
 is irreparable. The merit of his services and of the man 
 will be increasingly appreciated as time goes on. 
 
 In the compromise which M. Tarde furthered between 
 the principles of abstract reasoning and the data of experi- 
 ence, he effected a service in behalf of criminal law in some 
 respects comparable to that achieved in the field of civil 
 law by the distinguished M. Bufnoir, to whom was dedicated 
 the original edition of this book. It is natural that I now 
 associate with his memory that of M. Gabriel Tarde. To 
 both I express my personal obligation ; and to both all 
 future students of civil law will be increasingly grateful. 
 The demands of the social order represented by the rigidity 
 of legal principles as well as by the requirements of individ- 
 ual justice, will ever be recognized; and such requirements 
 will more and more bear the impress of psychology and 
 the principle of individualization. 1 
 
 R. SALEILLES. 
 
 PARIS, April 24, 1908. 
 
 1 In addition to the works on Psychiatry cited in this preface, I wish to 
 refer to a new book by Dr. Dubais, " L'Education de soi-mfime" (Paris, 
 1908). [English translation: "Self Control, and how to secure it." Punk & 
 Wagnalls Co.] See the chapter entitled "L'Acte," p. 88, first edition. See 
 also the important "Traite de Pathologic mentale," published under the 
 direction of Dr. Gilbert Ballet (Paris, 1903), pp. 1465, seq.
 
 INTRODUCTION 
 
 BY GABRIEL TARDE* 
 
 As the first volume of a series in sociology to be published 
 under the auspices of the College of Social Sciences, the 
 present book is certain to meet with a prompt and decided 
 recognition. This institution, founded three years ago, 
 has satisfied a real public need; it has become a permanent 
 congress, not of religions but, more venturesomely, of social 
 philosophies. Common points of view are more readily 
 found in Christianity, Buddhism, and Mohammedanism, 
 than in the several doctrines that, from Le Play and Comte 
 to Karl Marx, have been expounded hi turn from the same 
 professorial chair in the rue de Tournon. Here extremes 
 have met by finding a common ground in the field of prac- 
 tical applications, to which, even more than to theories, the 
 hospitality of this foundation has been extended. It neglects 
 no timely question in the interests of public philanthropy, 
 political economy, and even aesthetics and ethics. Natu- 
 rally the problem of crime and punishment could not remain 
 foreign to its purpose. The lecturer of this year, assigned 
 to present and discuss these problems, is the author of the 
 present book. His readers will agree with the verdict of 
 M. Saleilles' audiences, that the choice was a happy one. 
 
 1 Late Magistrate in Picardy, Professor of Modern Philosophy in the 
 College of France, and lecturer in the Paris School of Political Sciences, author 
 of "Penal Philosophy" (No. VI, in the Modern Criminal Science Series). ED 
 
 xxvii
 
 xxviii INTRODUCTION 
 
 M. Saleilles presents two qualities rarely combined: the 
 dialectic subtlety of the jurist and the keen analysis of the 
 psychologist and criminologist. His ability as a thinker 
 found a field for expression in the Faculty of Law of Paris. 1 
 The same quality appears in this volume, in which he carries 
 out his purpose of reconciling a loyalty to moral responsi- 
 bility based upon the freedom of the will with the advocacy 
 of a punitive system derived from quite different consider- 
 ations. He forcibly expresses the objections to the con- 
 ception of free will as a basis of penal condemnatio'n. He 
 mentions the practical difficulty of establishing the presence 
 of freedom; and again he brings forward the paradox that, 
 to be consistent, this view must assert that the first offender 
 should be held most culpable, while the recidivist, having 
 less power to resist as he becomes more hardened, should 
 be exempted from punishment. In brief, it appears that 
 the author, if not definitely siding with the new moralists, 
 such as MM. Cuche, Moriaud, and others, who, notwith- 
 standing their religious convictions, are breaking away from 
 the traditional association of ideas between freedom and 
 responsibility, yet closely approaches their conclusions. In 
 common with them he regards the freedom of the will as 
 having no bearing upon moral or criminal responsibility. 
 It may be that what he retains of the freedom of the will, 
 presumably to appease the popular conscience, is more the 
 name than the reality. While admitting that responsibility 
 implies freedom, he adds that freedom as popularly con- 
 ceived is simply physiological normality. "What determines 
 the degree of popular indignation is not the measure of free- 
 dom which the act implies, but the degree of sympathy or 
 
 1 M. Saleilles was recently obliged to undertake the courses in civil law, 
 ably and learnedly presented by his father-in-law, M. Bufnoir. The sudden 
 death of the latter necessitated M. Saleilles' acceptance of a difficult task.
 
 INTRODUCTION xxix 
 
 repugnance which the agent arouses," according to his 
 character as revealed in act and speech. This amounts 
 to saying that the popular conscience, in reaching a verdict, 
 is concerned in determining, not whether the incriminating 
 act was freely done (which would be paradoxical, implying 
 that the issue could have been different from what it was, 
 at the moment when it became the issue) but whether it 
 conformed to the permanent and fundamental character 
 of the accused. M. Saleilles rightly says that "the con- 
 ception of freedom is the same as that of a first cause. " Now 
 I know of no jury or court which, before condemning a man, 
 has ever stopped to ask whether he was the primary or only 
 the secondary cause of his act. A real cause is enough. 
 What makes a man's act his own is an inner causality 
 "a psychic determinism," as M. Fouillee would say. Such 
 issue belongs to every individuality, and to the individual 
 himself, not to the alleged physical, physiological, and 
 social factors, of which the personality is but the point of 
 intersection. It is also which is at times overlooked the 
 subjective fusion and expression of these several conditions. 
 I do not deny, more than does M. Saleilles, the existence 
 of freedom in a metaphysical sense; but I separate it from 
 the problem of responsibility, where the conception should 
 be retained, at least in outward form. Hence arises the 
 difficulty of reconciling the two conclusions: how, on the 
 one hand, to retain moral responsibility, centering about 
 the freedom of the will, as the basis of condemnation; on 
 the other, to base penal legislation on the very different 
 principle of the individualization of punishment. 1 Thus 
 freedom would be reduced to a mere principle "without 
 
 1 "Responsibility as the basis of punishment and individualization as 
 the criterion of its application: such is the formula of modern penal law." 
 (P. 181).
 
 XXX INTRODUCTION 
 
 application*'; for it does not determine the severity nor 
 the choice of the punishment. The defendant is judged 
 to be culpable because, by implication, he is judged to have 
 been free; though care is taken not to mention the word 
 " freedom," a caution observed by the Code of 1810, and 
 commended by our author. But it is the permanent char- 
 acter that punitive trea ment should consider. If this be so, 
 it follows that when the crime appears to be the issue not 
 of the true character of the agent but rather of a momentary 
 lapse, punishment should not be enforced; for there is no 
 occasion to reform a character because of incidental conduct. 
 Consequently it would seem more logical to let both the 
 responsibility and the liability to punishment depend upon 
 individual character, and thus responsibility and individual- 
 ization, far from being contradictory or antagonistic, spring 
 from a common origin. If our author does not quite reach 
 this position, the trend of his characteristic thought brings 
 him near to it. Among the interpretations which he gives 
 to the conception of freedom, the one he favors consists in 
 defining it as an influence upon the personality tending 
 towards a change of character. In this sense, which is ac- 
 ceptable even to the determinists, he notes pertinently that 
 punishment considers future freedom, "the germ of the 
 moral future of the condemned," and must regard this 
 much more than his past freedom "that which led him 
 towards crime. " 
 
 The problem is not to proportion the punishment to the 
 material evil done, nor to the degree of criminality involved 
 at the moment of the crime, but mainly to adjust it to the 
 perversity of the agent, to his real criminality, which is to 
 be prevented from expressing itself in further action. This 
 view, which he recognizes as of ancient origin, M. Saleilles 
 (in common with the International Union of Criminal Law)
 
 INTRODUCTION xxxi 
 
 ascribes to the Italian school. He cites the official eccle- 
 siastical decrees that anticipate our psychological criminol- 
 ogists on this point, in that, through their attention to the 
 motive, they regard punishment as a remedial measure, rather 
 than as a debt or an expiation. I confess that I am less sur- 
 prised to find this view among the theologians than among 
 the positivists. It is strange that when the criminologists 
 of our day, whether naturalists or sociologists, look for the 
 causes of crime, they find only impersonal factors like climate, 
 social environment, season, race, cranial or other anomalies; 
 in brief, they make crime a natural or sociological fact, and 
 depersonalize it. And later, when they come to the problem 
 of the application of their theories to punishment, one is 
 surprised to find them carrying the individualization of 
 punishment to the extreme, as though the individual, who 
 hitherto was of no consequence, had suddenly become all- 
 important. A choice must be made: if we regard it es- 
 tablished that punishment should be individually adjusted, 
 we should also agree that crime and criminality are pre-emi- 
 nently affairs of the individual, and this, notwithstanding 
 the range of surrounding influences and external circum- 
 stances; for it is truer that the individual utilizes these 
 than that he is moulded by them. If we persist in believing 
 that the individual does not make his own what he imbibes 
 (in which case there would be no individuality); if we per- 
 sist in believing and maintaining that the true causes of 
 crime are the impersonal factors constantly present in nature, 
 in history, and in society, then our endeavor should be con- 
 centrated upon the reform and improvement of these fac- 
 tors, and not upon the reform and improvement of the 
 individual, who is but the passive servant of their sover- 
 eign decrees. 
 
 Consequently, the general tendency to adjust punish-
 
 xxxii INTRODUCTION 
 
 ment to the individual clearly shows that crime is more and 
 more regarded as the result of individual causes and that 
 the individual is held responsible for their occurrence. 
 Responsibility and individualization of punishment are not 
 incompatible ; and M. Saleilles need not excuse their as- 
 sociation. The two are connected, the one implying the 
 other, and by associating them in his theory he has avoided 
 the contradiction of more radical but less logical positions. 
 It is unfortunate that in individualizing punishment we 
 assign unequal punishments for like offenses. It is well 
 to recognize the sense of apparent injustice which this in- 
 equality cannot fail to present to a large number of the 
 convicted as well as to the uninformed public. Criminal 
 law is admirably defined by our author as "the sociology 
 of' crime adapted to the sense of justice. " But is not the 
 sense of justice dominantly that of an equality of treatment? 
 So far as possible it is the duty of legislatures, in regulating 
 punishments and hi fixing the upper and lower limit within 
 which the discretion of the judge operates, to take account 
 of this fundamental and popular notion of equity. Thus 
 I am entirely in accord with M. Saleilles in recognizing that 
 the individualization of punishment cannot be administered 
 by statute. It is primarily a judicial matter. It is admin- 
 istrative as well, but under the supervision of the judge. 
 Such judicial supervision would be facilitated by bringing 
 the prison administration under the authority of the Minister 
 of Justice, a reform constantly urged and as constantly 
 postponed. Our author rightly regards the Berenger law, 
 which becomes better understood the more it is extended, 
 as an admirable beginning of penal individualization by 
 judicial authority. This new and successful law falls in 
 well with the principles advanced in the present volume. 
 As indicated by the official report of 1895 on criminal sta-
 
 INTRODUCTION xxxiii 
 
 tistics, we are indebted to it for the arrest and decline of 
 the rising wave of habitual crime, which was apparently 
 beyond control. The law of deportation, which owes its 
 origin to a very different inspiration, is far from having 
 proved equally effective. "Gentleness does more than 
 violence. " 
 
 G. TARDE. 
 
 APRIL, 1898.
 
 AUTHOR'S PREFACE TO THE FIRST 
 EDITION 
 
 THE course of lectures which I had the honor to deliver 
 during the past winter at the "College of Social Sciences" 
 on the " Individualization of Punishment" is reproduced, 
 with slight modification, in this volume. As I was addressing 
 a mixed audience, for the most part unknown to me, who 
 presumably were to be my hearers throughout the course, 
 I had to avoid considerations proper to technical instruction 
 and give the lectures a markedly popular character. To 
 an audience somewhat unfamiliar with legal conceptions 
 I could not speak as a jurist; accordingly I kept to the field 
 of general ideas. This will explain certain gaps and short- 
 comings of the book. I am not unaware of them, but I 
 thought it best to retain the original form of presentation 
 which this work is to reflect. If the scientific aspect has 
 thereby been sacrificed, it may possibly have given place 
 to something more engaging, more individual, and more 
 vivid. 
 
 I must add a word of explanation in regard to another 
 matter. The subject, treated exhaustively, would include 
 all the branches of criminal law ; for the applications of the 
 principle of individualization have relation to every part 
 thereof. It was quite impossible in a limited course of ten 
 lectures to presume to cover this ground. I had to be satis- 
 fied to set forth the principles and expound the system; for 
 
 XXXV
 
 xxxvi PREFACE TO FIRST EDITION 
 
 such was the scope of the course. This work contains nothing 
 more; it is an exposition of principles. 
 
 I have in mind to follow it with a sequel; and in a second 
 work, now hi course of preparation and bearing the title 
 "Problemes de Politique Criminelle, " I shall set forth 
 certain applications of the principles of individualization, 
 so far as relates to such topics as limited responsibility, the 
 status of minors, complicity, and habitual crime. 
 
 It was my first intention to dedicate this book to the 
 Societe Generale des Prisons, under the influence and auspices 
 of which I received my brief training as a criminologist 
 and to which I owe a debt of gratitude. I had informally 
 inquired whether the Society would be willing to accept 
 this tribute, and was about to present my request officially 
 upon finishing the volume, when I was overwhelmed by an 
 inconsolable loss, both personal and in the relation of pupil 
 to master. 
 
 Under these circumstances it was natural for me to in- 
 scribe this work to the memory of M. Bufnoir. It is true 
 that he was not a specialist in criminal law; but to a mind 
 of his scope none of the branches of legal scholarship was 
 foreign. M. Bufnoir was one of those all-around men who 
 become specialists in whatever they have in hand, and al- 
 most in what they are momentarily discussing; and ques- 
 tions of criminology were of interest to him. But there is 
 more to be said. Through the force of his teaching he intro- 
 duced a method of instruction, cautious and sound, yet plas- 
 tic, delicate, and nicely adjusted to the requirements of the 
 practical and the social situation. Such a method is an 
 instrument of absolutely general application. It is not 
 limited to the sphere of civil law, but may be extended and 
 more completely and comprehensively developed, wherever 
 the requirements of society, as expressed in abstract legal
 
 PREFACE TO FIRST EDITION xxxvii 
 
 formulae, demand a more realistic interpretation. Such is 
 the case in regard to criminal law. In common with other 
 branches of law and perhaps most notably of all, criminal 
 law owes much to such disciplines as favor the newer methods 
 of interpretation. 
 
 Let me return to considerations of a more personal type. 
 In the progress of this book M. Bufnoir had a personal share. 
 I constantly consulted him in the preparation of my lectures. 
 He knew my difficulties and my hesitations; possibly also 
 my temerity, which he dared not encourage too openly but 
 which he was not displeased to put to the test. 
 
 My task is accomplished; but the gifted and versatile 
 man, who guided me in its preparation and whose intimacy 
 I enjoyed, has passed away. His influence pervades the 
 book, and I have inscribed his name upon the dedicatory 
 page. In resuming my work after the shock of such a loss 
 I could not do otherwise. The inscription was more than 
 the tribute of affection and the gratitude of a pupil. The 
 sentiment that inspired me will be understood by every 
 sympathetic reader. 
 
 In closing I wish to extend my profound thanks for the 
 auspices under which this essay is to appear. The modest 
 attempt which I present to the public hardly merits the 
 sponsorship of the name of M. Tarde. But I would not 
 forego the privilege; for it is to the volume, as the first 
 of the College of Social Sciences Series that the eminent 
 sociologist has willingly given the stamp of his approval. 
 This, at all events, is the only ground upon which I can con- 
 scientiously accept it. For his consideration of the book 
 thus introducing the series, as not unworthy of his endorse- 
 ment, I tender my cordial and respectful appreciation; and 
 I ask him to accept as well the gratitude of my hearers, who 
 in reality were my collaborators. For in oral instruction
 
 xxxviii PREFACE TO FIRST EDITION 
 
 that dispenses with a set program and is not governed by 
 the profitless concern for a diploma, such support is a com- 
 mon experience. The course grows by the mutual reaction 
 of mind upon mind, and by the reciprocal sympathy of 
 speaker and hearer. The lecturer does not prepare it hi 
 advance, but awaits the inspiration of his audience. Such 
 was the origin of the present book. 
 
 R. SALEILLES. 
 PARIS, March 11. 1898.
 
 LIST OF PERIODICALS REFERRED TO 
 , IN NOTES AND TEXT 
 
 Annales de I'^lnseignement superieur de Grenoble 
 
 Annales de 1' University de Grenoble 
 
 Annales de philosophic chr^tienne 
 
 Annee sociologique 
 
 Archivio giuridico 
 
 Bulletin de la Societ francaise de philosophic 
 
 Bulletin de 1' Union Internationale de droit penal. (Bull, de 1'Un. 
 
 inter, de droit p^nal) 
 Bulletin de 1' Union pour 1'action morale 
 Der Gerichtsaal 
 Deutsche Rundschau 
 Figaro 
 Griinhut's Zeitschrift fur das privat und offentliche Recht der 
 
 Gegenwart 
 
 Journal de psychologic normale et pathologique 
 Kritische Vierteljahresschrift fiir Gesetzgebung und Rechtswis- 
 
 senschafb 
 La Quinzaine 
 Reforme sociale 
 Revue Bleue 
 
 Revue critique de legislation et de jurisprudence 
 Revue de m^taphysique et de morale 
 Revue de Paris 
 Revue de psychologic sociale 
 Revue des Deux Mondes 
 Revue du Clerge francais 
 Revue Internationale de sociologie 
 Revue penale suisse 
 Revue p^nitentiaire 
 Revue scientifique 
 Zeitschrift fur die gesammte Strafrechtswissenschaft. (Zeitsch. 
 
 f. d. ges Str. W. ; In connection with Liszt, Z.)
 
 CONTENTS 
 
 FACE 
 
 GENERAL INTRODUCTION TO THE CRIMINAL SCIENCE SERIES .... v 
 
 INTRODUCTION TO ENGLISH VERSION BY ROSCOE POUND xi 
 
 AUTHOR'S PREFACE TO SECOND EDITION xxi 
 
 INTRODUCTION BY GABRIEL TARDE xxvii 
 
 AUTHOR'S PREFACE TO FIRST EDITION xxxv 
 
 LIST OF PERIODICALS REFERRED TO . . xxxix 
 
 CHAPTER I 
 
 THE STATEMENT OF THE PROBLEM 
 
 1. Sociological and Psychological Foundations 1 
 
 2. The Subjective and Objective Aspects of Crime 3 
 
 3. The Purpose of Punishment: "Zweckstrafe" 8 
 
 4. Practical Influences: the Jury 10 
 
 5. Types of Individualization 11 
 
 6. Queries and Objections: the Schools . . 13 
 
 7. Consistencies and Concessions of Opinion 15 
 
 8. The Origin of the Classic School 18 
 
 CHAPTER II 
 
 \ 
 
 THE HISTORY OF PUNISHMENT 
 
 9. Introductory: Private and Communal Punishment 20 
 
 10. Primitive Punishment as Penalty and as Expiation: the Wergild . 23 
 8 11. The Growth of Communal Interests and Social Consciousness: the 
 
 Religious Factor 26 
 
 12. Early Views of Objective Crime and Subjective Criminality ... SO 
 13. Responsibility, Freedom of the Will, and Sin, as determining 
 
 Crime 34 
 
 8 14. The Analysis of the Grounds of Punishment; Responsibility in 
 
 Ecclesiastical Law 39 
 
 8 15. Consequences of the Older Position: its Contrast with the Modern 
 
 View 42 
 
 8 16. Early Types of Individualization 44 
 
 8 17. The Discretionary Power of the Judge, and Individualization . . 47 
 
 8 18. The Protection of the Social Interests 49 
 
 8 19. The Classical and Historical Position 51
 
 xlii CONTENTS 
 
 CHAPTER HI 
 
 THE CLASSIC SCHOOL 
 
 PAGE 
 
 20. The Eighteenth Century Philosophy of Crime 52 
 
 21. Modifications and Concessions of Later Codes 56 
 
 22. Advantages and Defects of the Classic System 58 
 
 23. The Reaction and the Neo-Classic Transition 61 
 
 CHAPTER IV 
 
 THE NEC-CLASSIC SCHOOL AND INDIVIDUALIZATION BASED UPON 
 RESPONSIBILITY 
 
 24. The Assumption of Free Will: the Fallacy Involved 63 
 
 25. Empirical Conditions of Freedom: Premeditation 68 
 
 26. Potential and Actual Freedom: Applications 70 
 
 27. The Social Regulation of Conduct 73 
 
 28. Responsibility Proportioned to the Degree of Freedom; Irresponsi- 
 bility and its Establishment 75 
 
 29. The Basis of Mitigation and of Exemption from Punishment . . 79 
 30. The Individualization thus Resulting; Practical and Theoretical 
 
 Objections 83 
 
 31. Remote and Immediate Responsibility 87 
 
 32. The Social Responsibility for Crime 90 
 
 33. Motives and Impressionism of Juries 93 
 
 34. Individualization Resulting from the Variable Attitude of Juries . 95 
 
 CHAPTER V 
 
 THE ITALIAN SCHOOL AND INDIVIDUALIZATION BASED UPON FoRinDABiLnr 
 
 35. Historical Review of the Italian Movement in Penology .... 99 
 
 36. Practical Situations and Reforms: the Making of the Recidivist . 108 
 37. The Solution Proposes the Personal Consideration of the Offender 
 
 and his Social Reinstatement 107 
 
 38. Gradation by Presumptive Morality and Good Conduct of Of- 
 fenders: Protest against Promiscuous Association Ill 
 
 39. Criticism of the Position : its Basis in Law and in Public Opinion . 114 
 
 40. Purpose and Effect of Punishment: Consequent Status of Crime . 116 
 
 41. The Types of Criminals and their Individualized Treatment . . 118 
 
 42. Difficulties Attaching to the Position of Lombroso 122 
 
 43. A Third Italian School 125 
 
 44. The Physical Recognition of the Criminal; Innate and Acquired 
 
 Degenerate Traits 127 
 
 45. Other Phases of Italian Penology; Judicial Diagnosis 132 
 
 46. What Italian Penology has accomplished 134
 
 CONTENTS xljii 
 
 CHAPTER VI 
 
 THE DOCTRINE OF RESPONSIBILITY 
 
 PAGE 
 
 47. The Moral Issues in Punishment 137 
 
 48. The Criterion of Normality; Crime and Insanity; Mental and 
 
 Moral Maturity 140 
 
 49. Preventive Punishments for the Irresponsible 145 
 
 50. True Punishments for True Criminals 148 
 
 51. A Mediating View 150 
 
 52. The Popular and Social Bases of Responsibility; Social Solidarity . 152 
 
 53. The Subconscious Basis in Feeling and its Logical Justification . 157 
 
 54. Criminality and Motives; Responsibility and the Moral Nature . 159 
 
 55. General and Specific Freedom of Action 165 
 
 56. Responsibility, Freedom, and the Will 168 
 
 57. Freedom and the Principle of Causality 172 
 
 58. The Human Will as a First Cause 175 
 
 59. Determinism and the Environment 177 
 
 60. Freedom Essential to Punishment 179 
 
 CHAPTER VII 
 
 RESPONSIBILITY AND INDIVIDUALIZATION 
 
 61. Freedom in the Penal Codes 182 
 
 62. Social and Personal Aspects of Punishment: their Legal Recogni- 
 tion 184 
 
 63. The Conception of Punishment 187 
 
 64. Society's Interest in Punishment; Crime and Degradation . . . 189 
 
 65. The Moral Purpose of Individualized Punishment 192 
 
 66. Ecclesiastical Law and Individualization 196 
 
 67. Examples in Penance and Clemency for Special Crimes .... 199 
 
 68. Individualization in French Codes; Political Crimes 203 
 
 69. Individualization in Deportation 206 
 
 70. Individualization in Short-term and Long-term Sentences . . . 209 
 
 71. The System of Parole: its Faulty Application 215 
 
 CHAPTER VIII 
 
 LEGAL INDIVIDUALIZATION 
 
 72. Legal Individualization Necessarily General 220 
 
 73. Examples of False Individualization 223 
 
 74. Approach to Judicial Individualization and the Cases Concerned 227 
 
 75. The Proper Education of Magistrates 231 
 
 76. The Place of the Jury in Individualization 232
 
 xliv CONTENTS 
 
 CHAPTER IX 
 
 JUDICIAL INDIVIDUALIZATION 
 
 PAGE 
 
 77. Older Forms of Individualization 237 
 
 78. The Analysis and Place of the Motive 289 
 
 79. A Second Interpretation of the Motive: the Psychological Factor 243 
 
 80. Difficulties in the Application of the Motive to Punishment . . 247 
 
 81. A Third Interpretation of the Motive: the Moral Status .... 251 
 
 82. . Individualization and Political Crimes 253 
 
 83. Individualization in the Italian Penal Code 256 
 
 84. Principles underlying Individualization; Uniform Punishments . 260 
 
 85. Legal Individualization for Special Offenses or Circumstances . . 262 
 86. The System of Parallel Punishments; Punishment and Social 
 
 Dishonor 266 
 
 87. The Factors entering into the Classification of Criminals . . . 270 
 88. A Tentative System of Individualization; Static and Dynamic 
 
 Criminality 274 
 
 89. The Detailed Classification of Criminals 278 
 
 90. Concessions to other Principles 282 
 
 91. Special Types of Individualization 285 
 
 92. Possible Extensions of Individualization; Relation to Preventive 
 
 Measures 288 
 
 CHAPTER X 
 
 ADMINISTRATIVE INDIVIDUALIZATION 
 
 93. The Administrative Treatment 295 
 
 94. The Principle of Indeterminate Sentences; the Elmira System . . 298 
 95. Modified Indeterminate Sentences adapted to European Con- 
 ditions 301 
 
 96. Difficulties in the Extension of the System 305 
 
 97. The Personal and Religious Factors in Reform 308 
 
 INDEX 315
 
 THE INDIVIDUALIZATION OF 
 PUNISHMENT 
 
 CHAPTER I 
 
 THE STATEMENT OF THE PROBLEM 
 
 1. Sociological and Psychological Foundations. 
 
 2. The Subjective and Objective Aspects of Crime. 
 
 3. The Purpose of Punishment: Zweckstrafe. 
 
 4. Practical Influences: The Jury. 
 
 5. Types of Individualization. 
 
 6. Queries and Objections: The Schools. 
 
 7. Consistencies and Concessions of Opinion. 
 
 8. The Origin of the Classic School. 
 
 1. Sociological and Psychological Foundations 
 
 THERE is at present a general movement having as its 
 purpose to detach the law from the purely abstract formulae, 
 which, as commonly regarded, hold it aloof from living 
 issues. Sooner or later civil law will no doubt undergo such 
 a transformation. As yet the change affects the field of 
 criminal law alone, and there it has acquired a firm foothold. 
 It is evident why this field was chosen for the initial venture. 
 Of the laws controlling the organization of society the old- 
 est and most inalienable is that of self-protection, whereby 
 each organism and each group of living creatures instinctively 
 rejects such factors as refuse to submit to the conditions 
 of its own existence, directly oppose it, or obstruct its further 
 development. Criminal law may be said to be the formu- 
 lation into a system of positive legislation of such require- 
 ments for the self -protection of society; or, in other words,
 
 2 INDIVIDUALIZATION OF PUNISHMENT [ 1 
 
 it may be said to be an instrument of social defense, adapted 
 to the requirements of the sense of justice. 
 
 It cannot be too constantly emphasized that the science 
 of sociology is something more than the correlation of facts 
 of experience. Inasmuch as it is a social science, and, indeed, 
 the social science, it finds in man at once a determining factor 
 and the objective goal of its pursuit. It considers the con- 
 ditions of organized groups. But the laws which it discloses 
 have likewise a message for the individual man, in that the 
 individual must take the initiative in their application. 
 Thus, for sociology, man is at once object and subject; and 
 this applies not alone to his specifically social relations but 
 to his entire psychological nature. It is generally recognized 
 that sociology finds its material directly in history and psy- 
 chology, but until recently psychology has been called upon 
 only for the explanation of the interactions of one man upon 
 another ; and such a restricted psychology is wholly in- 
 adequate. The interpretation of social reactions requires 
 a close study of the complete man, with his distinctive and 
 individual psychology. In the depths of human nature lies 
 the latent spark which becomes the motive force, insigni- 
 ficant at the outset but momentous in its issues. Here is 
 to be found the origin of man's personal development as 
 well as of his reactions upon others; here also lies the 
 origin of that other life, which is part of the individual, yet 
 which each individual develops only in his relations with 
 others and which constitutes his participation hi the social 
 organism. 1 
 
 In so far as the germ of human evolution is to be found 
 
 1 See the excellent lectures delivered by M. Tarde in October, 1897, at 
 the College of Social Sciences, from which source I have borrowed several 
 conceptions and phrases. These lectures have been published under the 
 title "Lea Lois sociales" (F. Alcan, last edition 1907). [English translation 
 by H. C. Warren, London and New York, 1899.]
 
 2] THE STATEMENT OF THE PROBLEM 3 
 
 in the psychology of man, it may be held that the sense of 
 justice is, of all the inherent human instincts, the deepest, 
 the most tenacious, and the most distinctive. The tenacity 
 of this sentiment appears in that it persists even among 
 the criminal classes, among those who presumably have 
 discarded all notions of it. They associate more or less 
 transiently in bands or small gangs and hold themselves 
 subject to laws based upon the sense of justice. Such adop- 
 tion of law and regulation, which is the essential foundation 
 of organized life, is found, not alone among those banded 
 together for a purpose, but even among those who resist the 
 laws of society. The sentiment appears in their insistence 
 upon a fair division of the spoils, in holding to their word 
 of honor, in their legitimized sanction of occasional betrayals, 
 all these represent the expression of the sense of justice. 
 Their mutual relations, their language, and such convic- 
 tions as these criminals retain, reflect the same sense of innate 
 justice that prescribes for society what is due to the in- 
 dividual in his relations with others. 
 
 Criminology must accordingly consider the essentially 
 social nature of man as well as his individual character; 
 and it cannot neglect so important a factor of human psy- 
 chology as the sense of justice. Accordingly criminal law 
 may be defined, with sufficient precision and definite- 
 ness, as the sociology of crime adapted to the sense of 
 justice. 
 
 2. The Subjective and Objective Aspects of Crime 
 
 It is the purpose of a relatively recent school the 
 Italian to reduce criminal law to an instrument of so- 
 cial protection and to regard it merely as a reaction to the 
 sociological forces conditioning crime. Before proceeding 
 further, it is well to face this position definitely, and to
 
 4 INDIVIDUALIZATION OF PUNISHMENT [ 2 
 
 show, along with the measure of support which it finds in 
 practice, the essential inadequacy and chief defects of this 
 Italian school. 
 
 The distinctive purpose of criminal law would thus be- 
 come the economics of social defense; but this formula of 
 the Italian school should be amended by adding: an econo- 
 mics of social defense adapted to the demands of the sense 
 of justice. That criminal law reflects the sociology of crime 
 is sufficiently clear; but the sociology must be such as leaves 
 the heights of abstract science and becomes adjusted to 
 common sentiment, to ordinary notions that circulate 
 in the body social, to the sense of justice, the distinction 
 between good and evil, and accepted views regarding human 
 responsibility. All this applies no less to the conception of 
 crime than to criminal law. 
 
 Crime has been regarded as falling to pathology. It is 
 better to refer it to sociology, 1 for a social product it un- 
 deniably is. Crime is a social phenomenon in the nature 
 of a violation of a generally recognized social obligation. 
 It is an outgrowth of social institutions, but consists of an 
 individual disregard of the rights of justice. Criminal law 
 occupies a distinctive position in the group of the social 
 sciences ; and every general system of sociology must in- 
 clude an analysis of the social protective function. 
 
 The entire province of criminal law must be reviewed from 
 this new approach. A comprehensive and constructive sur- 
 vey of the data, together with an exposition of principles, 
 must be directed to the critical problem of criminology, 
 which is the problem of the individualization of punishment. 
 
 The first step is to indicate how the problem arises and 
 what are its main features. Logically defined, crime is a 
 violation of the legally established order. Punishment is 
 1 See Makarewicz, "Das Wesen dea Verbrechens" (Vienna. 1896).
 
 2] THE STATEMENT OF THE PROBLEM 5 
 
 the penalty of such transgression of the law and may be 
 looked upon as a reparation, a kind of compensation through 
 the suffering of the individual for the injury that has been 
 done; as such it is what the Germans call a Vergeltungsstrafe. 
 When thus considered, it is the practical consequence of a crime 
 that attracts attention, by which is meant the social disturb- 
 ance that has been occasioned, the resulting individual or col- 
 lective harm of which society reflexly feels the effect. 
 
 To express these relations in legal language technical 
 phrases have been adopted. In discussion the external as- 
 pect of the criminal act is referred to as the "materiality," 1 
 or circumstanceslof the crime; and in so far as we have come 
 under the influence of this terminology, as used in scientific dis- 
 cussions, we speak of it as the "objective" side of the crime. 
 
 It is obvious that a school which regards only the con- 
 sequences of an act the " materiality " of the crime, or 
 the injury done disregards the personality of the criminal 
 agent; for this factor does not affect the crime itself. Who- 
 ever the criminal, the consequences of his crime remain the 
 same. The punishment is not the expiation imposed upon 
 the individual criminal; it is the compensation for the injury 
 done, and this remains the same whoever the agent may be, 
 and whatever may be the nature of his personal disposition. 
 The law sets the punishment in accordance with the injury 
 done; by which is understood only the objective injury. It 
 sentences to months or years of imprisonment, or to penal 
 servitude, or even to death, according to the material gravity 
 of the crime. The person of the criminal is not considered. 
 In the eyes of criminal justice the offender is but an ab- 
 stract, nameless individual, as later he becomes a mere 
 number in the work-yards of the jail or penitentiary. 
 
 1 This French term has no equivalent in Anglo- American law. It signifies 
 the abstract quality of the act in itself, apart from the mental or moral state 
 of the doer. ED.
 
 6 INDIVIDUALIZATION OF PUNISHMENT [ 2 
 
 Thus conceived, criminal law becomes a wholly abstract 
 construction, taking cognizance only of the crime while 
 ignoring the criminal. In this familiar view a crime becomes 
 a legal abstraction, after the manner of a geometrical con- 
 struction or an algebraic formula. Upon this abstraction 
 the law develops its procedure and argument. Every 
 technical science has its formulae, as typically in algebra 
 terms are added, subtracted, or multiplied. But the legal 
 formula lacks one essential term, and that is the intent. This 
 may be represented by AB t A standing for the crime as a 
 whole, as completely accomplished, and B the factor which 
 it lacks of completion. Such penal codes as the Italian, 
 which aim to be strictly logical and quantitatively adaptable, 
 would lessen the punishment in view of such consideration. 
 If a represents the entire punishment corresponding to the 
 factor A, which is the entire crime, and b the fraction of the 
 punishment in proportion to what the crime lacks of accom- 
 plishment, the punishment for the attempt would be repre- 
 sented by a b, just as objectively the crime is expressed by 
 the formula AB. What is true of the intent would be 
 proportionately true of joint complicity ; in which case, 
 instead of the operation of subtraction, an equation is 
 assumed, A = B = C, with correspondingly identical punish- 
 ments. In the case of a joint crime, the crime of each ac- 
 complice may be assumed to be the same, until by a process 
 of civil law a more accurate verdict is reached. Disregarding 
 the nature of the accomplices and their different intentions 
 and their several wills, their participation is equalized in 
 their common crime ; and they are alike subject to the same 
 degree of punishment under the principle that the same 
 crime deserves the same punishment. 1 If objection be made 
 to this theory on the ground that it makes the procedure 
 1 French Penal Code, art. 59; and the proposed revision, art. 82.
 
 2] THE STATEMENT OF THE PROBLEM 7 
 
 fictitious and artificial, recourse may be had to a law which 
 is regarded as more equitable and which, instead of equal- 
 izing, distinguishes the greater and the less, and reduces 
 the punishment of an accomplice, recognizing that his part 
 is but accessory to the principal crime. 1 But the quantitative 
 conception persists. 
 
 Examples could readily be multiplied, but it is sufficiently 
 evident that underlying these equations and manipulations 
 of formulae there are involved living realities, human beings 
 whose moral and social future constitutes a problem. While 
 admitting that the sacrifice of individuals may be of slight 
 importance in comparison with the interests of social order, 
 it is not to be overlooked that society itself suffers through 
 the haphazard application of a mathematical type of ad- 
 ministration; for such punishment acts blindly, running 
 the risk of setting free the incorrigible and the pervert and 
 penalizing the semi-responsible and the chance offender. 
 The injustice of the situation is aggravated by the promis- 
 cuous intercourse of the prison that itself serves to make 
 perverts and to enlist these several classes in a career of 
 crime. 
 
 Be this as it may, the legal and objective view of crime, 
 despite its many concessions, remains the classic conception, 
 or at any rate what is still called the classic conception of 
 crime; for as a thorough-going conception this classic view 
 is hardly more than a tradition of the past. We have indeed 
 reached a point of development at which the several schools 
 are quite ready to assimilate. None the less the distinctive 
 conceptions of the classic school, namely, the tendency to 
 consider the criminal action hi its materiality and from its 
 objective side, and, secondly, its distinctive position with 
 reference to responsibility, still merit consideration. Ac- 
 1 For example, the Italian Penal Code, art. 64.
 
 8 INDIVIDUALIZATION OF PUNISHMENT [ 3 
 
 cording to this view there would be only crimes and no 
 criminals ; somewhat as if a physician were to maintain 
 that there are only diseases and no patients. The two 
 formulae are of like applicability. 
 
 3. The Purpose of Punishment: " Zweckstrafe " 
 
 Opposed to this fundamentally legal view another has 
 gradually gained ground and may, in its development, itself 
 become classic. It holds that punishment is to be deter- 
 mined not by the material gravity of the crime, not by the 
 injury done, but by the nature of the criminal. It would 
 indeed be a violation of justice if under pretext of justice 
 useless suffering should be inflicted. The legitimate pur- 
 pose of punishment is to make of the criminal an honest 
 man if that be possible ; or, if not, to deprive him of the 
 chance of doing further harm. For the view that punish- 
 ment is an infliction of injury for injury there is substituted 
 the view that punishment is a moral instrument, a means 
 of regeneration for the individual as well as of protection 
 for society. Punishment has thus a social end directed to 
 the future, while hitherto it was regarded only as the neces- 
 sary consequence of a past act. It was appraised and de- 
 scribed in terms of the crime committed without reference 
 to future issues; and this attitude resulted in making habitual 
 criminals. 
 
 Where formerly only the accomplished deed was consid- 
 ered, the purpose of punishment is now taken into account. 
 Such purpose is not to inflict a punishment for what has 
 been done, as if in satisfaction of a sentiment of individual 
 or collective vengeance, but to bring about a certain result. 
 The Germans call this aspect of punishment (in contrast 
 to the " Vergeltungsstrafe, " which in the classic view was 
 a punishment by way of compensation or retribution) the
 
 3] THE STATEMENT OF THE PROBLEM 9 
 
 " Zweckstrafe," 1 which we can hardly render more closely than 
 by the phrase "punishment for a purpose." Yet the term 
 does scant justice to the important movement inspired by 
 Ihering, and to the significance therein attached to the con- 
 ception of the final purpose ("Zweck"), the consideration 
 of which was to reanimate the dead bones of the law. The 
 vital principle of every organic function is this same "Zweck" 
 or final purpose ; and this is equally true of the law. The 
 function of punishment must accordingly be directed to 
 its social purpose and adapted to that purpose as an instru- 
 ment is adapted to the operation in view. Accordingly 
 it is the future and not the past, not the crime committed, 
 that sets the goal and the purpose sought. 
 
 Consequently punishment for each individual case should 
 be so adjusted to its purpose as to produce the largest pos- 
 sible return. It cannot be strictly and rigidly determined in 
 advance, nor inflexibly regulated by the law. The purpose 
 of punishment is an individual one and is to be attained 
 through a policy appropriate to the circumstances of the case, 
 not by the application of an abstract law, that ignores the 
 varieties of the cases considered. Such is the "Zweckstrafe," 
 a punishment characterized by its purpose, as opposed to 
 the "Vergeltungsstrafe," a punishment crystallized as a 
 mechanical and exact retribution, ineffective in regard to 
 the past and without influence upon the future. If this 
 conception of punishment, which looks to the future for 
 the realization of a definite purpose, be accepted, it neces- 
 sarily follows that the punishment must be adapted to the 
 nature of the individual to whom it is applied. If the crimi- 
 nal is not fundamentally a pervert, the punishment should 
 not contribute to his further perversion. It should serve 
 
 1 For bibliography see Von Liszt, "Lehrbuch des Deutschen Strafrechts " 
 (edition 1905, 15).
 
 10 INDIVTOUALIZATION OF PUNISHMENT [ 4 
 
 for his regeneration and his rehabilitation. If the criminal 
 is an incorrigible, the interests of society demand his punish- 
 ment as a measure of protection and of radical prevention. 
 Such adaptation of punishment to the individual is now 
 known as the individualization of punishment. As in medi- 
 cine it has been maintained that there are no diseases but 
 only patients, so one is tempted to say that, strictly speak- 
 ing, there are no crimes but only criminals. 
 
 4. Practical Influences: the Jury 
 
 The movement for reform, which has now assumed a 
 distinctively scientific character, began as a purely human- 
 itarian reaction, prompted by a sense of popular and senti- 
 mental justice. It was the jury that first practiced such 
 individualization and did so constantly without knowing 
 it. It was however applied casually and inopportunely, and 
 that is why science now attempts to regulate what is still 
 only the issue of an empirical procedure. While the jury- 
 system cannot be unreservedly commended, its initia- 
 tive in this movement (which goes back to its first ap- 
 plication in the French Penal Code) should, in justice, be 
 acknowledged. 
 
 The law considers only the crime, and it ruthlessly and 
 rigidly applies the formulated punishment, disregarding 
 the criminal. The jurymen stand face to face with a man 
 whose life and honor they hold in their hands; thus con- 
 fronted they can hardly remain indifferent to his motives, 
 his antecedents, and his former life. They become so wholly 
 absorbed in the impression of the individual that, time and 
 again, in defiance of the law, they forget the crime; and 
 thus crimes come to be distinguished by their tendency 
 or their failure to enlist the sympathies of the jury. There 
 are classes of crimes in which the jury always ignores the
 
 5] THE STATEMENT OF THE PROBLEM 11 
 
 facts and is moved by sentiment, by the sway of the instinc- 
 tive and possibly irresistible passions from which the crime 
 resulted. Such crimes have come to be called crimes of 
 passion. For them the law prescribes punishments no 
 differently than for other crimes and equally ignores their 
 nature. The jury circumvents the law and brings in an 
 acquittal, thereby favoring individualization in so far as 
 it takes account of the individual. It often applies this 
 policy poorly, and sometimes very unjustly. However, 
 it reveals loyalty to a psychological impulse as well as to 
 a principle; and it aims to place the consideration of the 
 individual above that of the deed. 
 
 This tendency began with the introduction of juries under 
 the Empire and the Restoration. From 1824 on, one of 
 the first laws reforming the penal code admitted extenuating 
 circumstances for certain crimes; not for all, but for those 
 most likely to result in acquittals, often of a notorious nature. 
 Extenuating circumstances are a form of individualization 
 of punishment. Their introduction in our criminal laws 
 was due to the influence of the jury. In 1824, in the Court 
 of Assizes, it was the court itself, that is, the judges, who 
 were charged with the determination of the extenuating 
 circumstances. But juries defied judges, and continued 
 to acquit. In 1832 the jury was empowered to determine 
 extenuating circumstances; nevertheless, in crimes com- 
 manding sympathy, they acquitted as before. This again 
 was individualization, but it was badly applied and purely 
 empirical, at times somewhat emotional as were the crimes 
 concerned. 
 
 5. Types of Individualization 
 
 Neither science nor justice was thus served; and hence, 
 under the influence of the former, there arose the problem
 
 12 INDIVIDUALIZATION OF PUNISHMENT [ 5 
 
 of the individualization of punishment. It is true that 
 science was not first in realizing the situation; but facts 
 stronger than the law, jointly with public opinion, ever 
 impressed by facts, forced the problem by inquiring: On 
 what basis shall the individualization of punishment pro- 
 ceed ? This question, in turn, implied a second, closely 
 allied to it: By whom shall the individualization of punish- 
 ment be made ? Shall it be done in advance by the law ? 
 If so, it proceeds upon presumption, in ignorance of the 
 individuals concerned, and upon the judgment of them 
 through their actions. It groups them according to pre- 
 scribed classes, and undertakes approximately to set the 
 punishment and to adjust it to the individual criminal. 
 This would be a system of legal individualization. 
 
 On the other hand the judge is confronted not by an ab- 
 stract and nameless individual, but by an actual criminal 
 conscious of his crime and its significance. Shall the judge 
 then undertake the adjustment of the punishment to the 
 measure of surviving morality still available for reform 
 and moral reinstatement ? This would be a system of 
 judicial individualization. 
 
 Or shall we go farther still and leave the individualization 
 to the prison authorities, on the ground that they can 
 observe the prisoner in confinement, carefully adjust the 
 punishment to the progress made, and hi due course omit 
 it when they consider the reform established and rehabili- 
 tation secure ? For it may be found that the judge is not 
 hi a favorable position to appreciate the criminal, because 
 he knows nothing of him but the single fact of the crime 
 committed; and though he knows this with all its accom- 
 panying circumstances, he has not the basis for anticipating 
 the probable effect of punishment. This would be a system 
 of administrative individualization.
 
 6] THE STATEMENT OF THE PROBLEM 13 
 
 6. Queries and Objections: the Schools 
 
 Such are the important issues ; yet there is another, 
 more important than any such question of application, 
 which is beret with conscientious doubts. The classic con- 
 ception sets forth an important truth, or to speak more 
 accurately, two truths, which should be clearly grasped. 
 The first is that in itself and independently of the personality 
 of the criminal the evil done carries an actual injury to the 
 community which is the victim of the crime. This injury, 
 quite apart from an expiation in any religious or philo- 
 sophical sense, requires a satisfaction demanded by the 
 public conscience. Now if the consideration of the individual 
 prevails above the reparation, will not the policy encourage 
 others to continue in a criminal career ? And for society, 
 will this not produce a moral disorder which, like a con- 
 tagious disease, tends to spread ? An additional query 
 or objection applies; namely, the difficulty of divesting 
 the ordinary conception of justice from a kind of abstract 
 mathematical equality. Accordingly, if two individuals 
 receive different punishments for the same offense or are 
 differently treated, it would seem as though equity had 
 been disregarded, and that caprice had replaced justice. 
 How shall these exacting requirements demanded by society 
 be reconciled to the equally indispensable necessity of taking 
 account of the individual ? How shall they be reconciled 
 to the like requirements of proportioning the punishment, 
 not to the objective crime committed or to the material 
 injury done, but to the inherent criminality of the criminal, 
 to such latent or real criminality as makes him dangerous 
 to his fellowmen ? How, in brief, shall they be adjusted to 
 the degree of morality, or, if we may say so, of normality, 
 and to the prospects of regeneration which it holds out ?
 
 14 INDIVIDUALIZATION OF PUNISHMENT [ 6 
 
 Such are the several aspects of this very large problem of 
 the individualization of punishment. 
 
 But before considering the problem itself, it is well to 
 guard against certain impressions that commonly arise when 
 we classify systems, divide them into schools, and give them 
 specific labels. We naturally emphasize the central idea 
 in each school, and push it to the extreme. In consequence 
 of such theoretical abstraction, we unjustly and unwisely 
 set barriers between one school and another. It is however 
 fortunate that the common ground of practice serves to 
 bring the schools together. The practical solutions of the 
 one are accepted by the other. The theoretical principles 
 remain; but practical measures become the common prop- 
 erty of all; and that is the essential point. The several 
 reservations and shades of opinion should be taken at 
 their true worth, for a name or a label or an enroll- 
 ment under a different banner may be enough to prevent 
 a mutual understanding among those pursuing the same 
 purposes. 
 
 There are those who by reason of their belief in respon- 
 sibility and freedom and fortunately such still exist 
 regard themselves as forever bound by these principles to 
 the same camp, as solemnly sworn to the same platform; 
 and accordingly they refuse to accept any measures of social 
 protection proposed by an opposite school. Yet there is a 
 decided tendency for widely separated partisans to meet in 
 agreement upon matters of practical concern a desirable 
 issue that should find further favor and support. Such con- 
 cessions are necessary wherever there is something definite 
 to be done. The removal of barriers and misunderstandings 
 becomes a duty on the part of those who are in a position to 
 facilitate such closer approach. However inadequate they 
 may consider themselves, it devolves upon them to set to
 
 7] THE STATEMENT OF THE PROBLEM 15 
 
 work without too much concern for the past. They should 
 express themselves fearlessly and not be troubled by a sense 
 of insufficient authority ; nor should they set forth their 
 personal shortcomings as an excuse for silence. We have 
 reached a period of transition in which older conceptions 
 are confused and traditional notions no longer satisfy; yet 
 it is not feasible to hold back and wait until other measures 
 shall have been tried, or newer views definitely tested and 
 universally recognized. There is danger of waiting too 
 long, for, while waiting, the facts demand and must receive 
 attention. If the formulae of other times are no longer 
 adequate new solutions must be provisionally attempted. 
 Through co-operative effort a more advanced position 
 will be attained. Let each contribute his share. When 
 the old habitation is crumbling it will not do, in false 
 modesty, to remain under cover of a roof that threatens 
 to fall; it is far better to build a provisional shelter. 
 If every one, without sacrifice of individual belief, is 
 willing to combine with the others, the structure of the 
 future will promptly take shape and serve as a common 
 shelter. 
 
 Instances and evidences of this commendable freedom 
 from dogmatism could readily be cited. It is true that we 
 pass from one inconsistency to another, but life demands 
 such sacrifice, and history is but a striking demonstration, 
 notably in terms of human conduct and social laws, of the 
 persistent failure of the absolute and of the alleged principles 
 which it embodies. 
 
 7. Consistencies and Concessions of Opinion 
 
 Let us take the large question of responsibility, which 
 for a long time was the point of dissension. Every good 
 determinist, in order to be consistent, felt it necessary to
 
 16 INDIVIDUALIZATION OF PUNISHMENT [ 7 
 
 deny the validity of the concept of responsibility ; and it 
 would appear that nowadays, his inconsistency leads him 
 to abandon his position and to accept the postulates of the 
 positivist Italian school. Such pardonable inconsistencies 
 appear on all sides ; and we are beginning to recognize the 
 futility of demonstrations and syllogisms, which, however 
 engaging as mental exercises, have never suppressed a new 
 idea nor saved an old one. Man does not live by logic but 
 by practical needs; yet still more he lives by conviction 
 and personal faith. 
 
 Let us consider a few of these alleged inconsistencies. 
 Eminent scholars and sociologists (such as M. Tarde, to 
 mention the most distinguished) accept the strict applica- 
 bility of the law of causality to the psychological order of 
 things ; yet they firmly defend, in the sociological field, the 
 validity of the conception of responsibility. 1 Others (such 
 as Merkel in Germany) are loyal determinists, and retain 
 the traditional views of the classical school. In regard to 
 the nature of punishment they hold to the notion of penalty 
 and of reparation in the sense of rigid equity for the injury 
 done. 2 More recently Makarewicz 3 in a masterly presenta- 
 tion (hi Liszt's Zeitschrift) argues that the supposed antag- 
 onism between the classical and the positivist school in 
 matters of criminal law may almost be reduced to a question 
 of words ; and that on all practical issues the two are con- 
 
 1 See M. Tarde, " Philosophic penale," ch. iii. 
 
 2 See Merkel, "Lehrbuch des deutschen Strafrechts," 28; and Merkel, 
 "Vergeltungsidee und Zweckgedanke im Strafrecht" (Strassburg, 1892). 
 On the same subject, consult Mittelstadt, "Schuld und Strafe," an essay 
 published in the German review, Der Gerichtssaal (Stuttgart), Vol. XL VI, 
 pp. 237, 387, and Vol. XL VII, p. 1; as opposed to Merkel and Mittelstadt, 
 consult the important work of Liszt, "Die Deterministischen Gegner der 
 Zweckstrafe," in the Zeitsch. f. d. ges. Str. W,, Vol. XIII, p. 325. 
 
 3 Makarewicz, "Klassizismus und Positivismus in der otrafrechtswissen- 
 schaft" (Zeitsch. f. d. ges. Str. W., 1897, Vol. XVII, p. 590).
 
 7] THE STATEMENT OF THE PROBLEM 17 
 
 verging, and will presently be in accord. 1 Yet the classi- 
 cists, or "spiritualists," true to the conceptions of freedom 
 and responsibility, admitted extenuating circumstances, and 
 thereupon sponsored an extensive movement in behalf of 
 prison reform, based upon the hope of the moral regeneration 
 of the criminal. Ultimately they were influential in estab- 
 lishing in France the law of parole, which Germany, at least 
 officially, had long resisted, and which certainly is one of 
 the most distinctive measures in accord with the Italian 
 school. 
 
 As a dissenting view mention should be made of the French 
 law of 1885 on the deportation of hardened offenders, which 
 considers them as hopeless and proposes the elimination of 
 incorrigibles as a radical law of social defense. These two 
 French laws, it is well to repeat, are but the application in 
 constructive legislation of the platform which defines the 
 position of the new school. On the one hand it proclaims 
 the policy of aiding first offenders to re-establish them- 
 selves, and, on the other, the policy of segregating and elim- 
 inating such as are criminals by profession or delinquents 
 by nature and psychological condition; that is, it favors 
 liberal concessions for those momentarily led astray and 
 ruthless severity for those fundamentally perverted. Our 
 law of parole realizes liberal concessions for those momen- 
 tarily led astray ; and our law of deportation realizes ruth- 
 less severity for those fundamentally perverted. Here we 
 find the very position of the Italian school, but find it applied 
 by the classicists. 
 
 From this preliminary survey a very assuring conclusion 
 emerges. In Germany there are determinists and orthodox 
 
 1 See analogous views in the study of M. Cuche, "De la possibility pour 
 l'cole classique d'organiser la repression penale en dehors de libre arbitre " 
 (Annalet de I'univerrite de Grenoble, Vol. IX, 1897. p. 509. seq.).
 
 18 INDIVIDUALIZATION OF PUNISHMENT [ 8 
 
 positivists who uphold the classic conceptions of punishment ; 
 and in France there are idealists or "spiritualists" if not in 
 a philosophic yet in a religious sense, as loyal to creed 
 who do not hesitate to go far in the direction of the pro- 
 posed reforms. However it is to be interpreted, this conces- 
 sion serves to break down the barriers of philosophical 
 systems, and to establish a common interest in the field 
 alike of justice and of the needs of society. 
 
 8. The Origin of the Classic School 
 
 We may now proceed to explain briefly the position of 
 what is called the classic school, the traditional school 
 to which is due the French Penal Code; but before doing 
 so it will be well to show its origins and approach it through 
 a brief history of its teachings. How did this purely judicial 
 conception of punishment and its application originate? 
 By what evolution of ideas did it proceed ? It has resulted 
 in a view of the criminal act as an abstraction, as a sort 
 of algebraic quantity independent of the personality of the 
 offender, and in a view of punishment as something to 
 be determined by the external circumstances of the act, 
 without consideration of the nature of the personality of 
 the human being whose fate is involved. This conception, 
 which the rational spirit of the early nineteenth century 
 viewed with pride, the present century is likely to regard as 
 astounding; particularly in view of the fact that it is the 
 rationalists who are abandoning it, and the "spiritualists" 
 who are anxious to retain it as the motto of their philosoph- 
 ical faith. Let us proceed to consider the origin of this 
 position, the historical evolution which resulted in the arti- 
 ficial and fictitious constructions of criminal law. 1 
 
 1 The tendency of criminal law towards the individualization of punish- 
 ment has advanced since 1898. It appears in the writings of Prins, "Science
 
 8] THE STATEMENT OF THE PROBLEM 19 
 
 penale et droit positif" (1889); and in the volume of M, Cuche, "Traite" 
 de science et legislation penitentiaires" (1905). Attention should likewise 
 be called to an English volume of great practical interest, which is directly 
 inspired by the idea of individualization: "Criminals and Crime," by Sir 
 Robert Anderson (London, 1907). In addition, in the proceedings of the 
 Congres de 1'Union internationale du droit penal, see the discussions at the 
 meeting at St. Petersburg, 1902, particularly the address of M. Garraud, on 
 the "Tendances contemporaines de la science du droit penal" (Bulletin de 
 I'Un. inter, de droit penal. Vol. 11). For legislation, see the new Norwegian 
 Penal Code, in effect from January 1, 1904 (Paris, Rousseau, 1903); and its 
 important preface by M. Gargon. It may be mentioned in this connection 
 that a Swiss Penal Code is proposed looking toward a revision, and of date 
 1903 (Avant-projet de Code penal suisse, June, 1903, Berne, Stoempfle). 
 Since then there has been still another; but the new text has not yet been 
 published. 
 
 An analogous reactionary movement against abstract formulae and the 
 purely syllogistic spirit is clearly indicated in the civil law. I refer to the 
 newer legal interpretations, which, since the publication of M. Geny's " Me- 
 thode d'interpretation et Sources en droit priv6 positif" (1899), is making 
 headway. For several articles inspired by the new point of view see the 
 "Livre du centennaire du Code civil" (Vol. I). On the entire movement 
 consult Paid Van der Eycken, "Methode positive de 1'interpretation juri- 
 dique" (Alcan, 1907). 
 
 Of interest are several articles which appeared (1908 and 1909) in the 
 Revue de metaphysique et de morale, notably two articles by M . MaUieux, 
 "La methode des juris-consultes (July, 1907); and "Le r61e de I'experience 
 dans les raisonnements des juris-consultes (November, 1907); also an arti- 
 cle by M. Meynial, "Du r&le de la logique dans la formation scientifique du 
 droit" (March, 1908). 
 
 I add a reference to the new Revue de psychologic sociale, first issued in 
 June, 1907, and which, as the title indicates, deals with the problems of civil 
 and criminal law in the spirit here characterized. 
 
 In regard to the contrast frequently referred to in this chapter, between 
 "Vergeltungsstrafe" and " Zweckstrafe," see the pamphlet of Reinhard 
 Frank, "Vergeltungsstrafe und Schutzstrafe" ; "Die Lehre Lombrosos" : 
 Ewei Vortrage (Tubingen, Mohr, 1908).
 
 9. Introductory: Private and Communal Punishment. 
 
 10. Primitive Punishment as Penalty and as Expiation: the Wergild. 
 
 11. The Growth of Communal Interests and Social Consciousness: the 
 Religious Factor. 
 
 12. Early Views of Objective Crime and Subjective Criminality. 
 
 13. Responsibility, Freedom of the Will, and Sin, as determining Crime. 
 
 14. The Analysis of the Grounds of Punishment; Responsibility in Eccle- 
 siastical Law. 
 
 15. Consequences of the Older Position: its Contrast with the Modern 
 View. 
 
 16. Early Types of Individualization. 
 
 17. The Discretionary Power of the Judge, and Individualization. 
 
 18. The Protection of the Social Interests. 
 
 19. The Classical and the Historical Position. 
 
 9. Introductory : Private and Communal Punishment 
 
 THE history of the theory and practice of punishment 
 has never been adequately presented; only its objective 
 study has been undertaken. The history of ideas is elusive; 
 some find embodiment in definite systems, and these alone 
 attract attention. Yet systems but reflect the outer aspect 
 of historical growth ; they mark the beginning or the end 
 of an epoch; they form a synthesis that sums up a move- 
 ment, or, as in the case of Rousseau's "Social Contract," 
 an initiative that begins one. Apart from this, systems 
 
 1 In this connection see the article by M. Durkheim, "Deux lois de PeVolu- 
 tion penale" (in the AnnSe sociologique. Vol. IV, 1895-1900, p. 65, seq.). On 
 the history of criminal procedure consult the classic work of M. Esmein, 
 "Hutoire de la procedure criminelle en France," [translated by Mr. Simpson, 
 in the Continental Legal History Series (Boston: Little, Brown, and Co., 
 1912)]. 
 
 20
 
 9] THE HISTORY OF PUNISHMENT 21 
 
 have value only as individual statements; similarly, the 
 history of society is shaped by popular conceptions ; and 
 these, in turn, arise from facts rather than from doctrines. 
 They are vague, superficial, and confused; and however 
 unconsciously maintained, they are efficient. They are at 
 once forces in the making and in operation. It is just when 
 their influence is most active that they are least tangible. 
 When ready for formulation their development is often 
 at an end. Therein lies the difficulty of writing the history 
 of doctrines or of intellectual movements. 
 
 These explanations are necessary to excuse the inevitable 
 shortcomings of the presentation which is to follow; and 
 particularly to advise the reader in regard to the scope of 
 the present task. Only a general outline, itself summary 
 in character, is attempted, with the view of setting in relief 
 certain conceptions which are necessary to the understanding 
 of the modern movement. Such an historical sketch may 
 first attempt to trace the origins of criminal law in reference 
 to our own civilization, and the traits that have character- 
 ized it from its first appearance. It includes as well some 
 account of current conceptions and accepted formulae, 
 an account possibly subject to correction, in that the whole 
 is foreshortened in perspective. 
 
 The statement is commonly made and accepted that 
 criminal law began as private vengeance. That which in 
 primitive societies took the place of what we now call public 
 opinion was not enlisted to avenge crimes against individ- 
 uals, for these did not concern the collective security of the 
 primitive social group. Every individual had the right 
 to defend himself and to take vengeance when attacked. 
 Such private vengeance was conducted as warfare ; the one 
 injured took up arms against his foe. The duel is such a 
 primitive form of penal right. The conception of penalty
 
 22 INDIVIDUALIZATION OF PUNISHMENT [ 9 
 
 and censure is as absent from the primitive system of punish- 
 ment as it is absent in the case of the duel as now practiced; 
 for the duel is unaffected by the character of the aggressor 
 or by the criminal status, either legal or social, of the act 
 which was the cause of the affair. 
 
 There followed a period in which the conception of com- 
 munal peace began gradually to emerge ; and in consequence 
 private wars came to be considered as an interference with 
 public peace. The communal interest interposed and in- 
 duced the contestants to put down their arms and agree 
 upon a price to be paid ; the proceeding was to all intents 
 an enforced treaty of peace. As private war became less 
 common it advanced in dignity. Instead of being the right 
 of all free men, it became a privilege of certain special classes, 
 such as the great barons of feudal times. But we have not 
 yet reached this period. 
 
 At the outset such issues were in the nature of private ami- 
 cable treaties ; but if the contestants could not reach an under- 
 standing, the people, when they felt that they had the power, 
 set the price which the offender was to pay to the offended, 
 according to the nature of the offense. Such payments, 
 which were abstract quantitative values, to be translated 
 into the media of exchange in use at the several economic 
 stages of history, were fixed according to the social status 
 of the parties concerned. Later, under the influence of 
 altered customs and contact with the Roman Empire, such 
 payments were fixed according to what might be called the 
 social worth of the injured party, by which was understood 
 the position held by him; and particularly by his status 
 in relation to the tribal chief, the "rex" or king. 1 The sum 
 represented the worth of the man who had been killed or 
 
 1 This relation is clearly set forth by Sohm, in his able volume: "Die 
 Frankische Reich- und Gerichtsverfassung."
 
 10] THE HISTORY OF PUNISHMENT 23 
 
 wounded, and was accordingly called the value of a man, 
 Wergild. 
 
 10. Primitive Punishment as Penalty and as Expiation : the 
 
 Wergild 
 
 Such was criminal law at its first appearance. It was 
 a wholly objective penal law in that the substitute for pun- 
 ishment, the Wergild, was a fixed sum to be paid, in- 
 dependently of all personal considerations. If these early 
 instances show a first attempt at individualization, it was 
 made in behalf of the victim and not at all of the offender. 
 So far as either was considered, it was the person injured. 
 According to the class to which he belonged, or, later, ac- 
 cording to the position which he held, the price to be paid 
 varied. The personality of the offender was not considered. 
 So, while the evil done might vary according to the social 
 position of the victim, the appraisal of the injury did not 
 vary with the personality of the author of the crime. Clearly 
 a penal law of this type was wholly objective. 
 
 But though sanctioned by law the punishment was still 
 of a purely private character. The punishment was the 
 private vengeance taken upon the victim. Public interest 
 did not interfere but remained neutral. There was set in 
 operation for the benefit of the injured party a modified 
 application of the law of retaliation. Punishment in its 
 public aspect had not yet appeared, but was still regulated 
 as between individuals. Such is the accepted interpretation. 
 
 Possibly this account of private vengeance, accurate 
 enough in outline, fails to suggest the complexity of the 
 several points involved or to make clear the sociological 
 and legal nature of punishment at its first historical ap- 
 pearance. It appears merely as an outcome of private war; 
 its social character remains obscure. But to say that there
 
 24 INDIVIDUALIZATION OF PUNISHMENT [10 
 
 was no public punishment would be a mistake. From the 
 very outset, punishment had a twofold social character. 1 
 A point apt to be forgotten is that along with the Wergild 
 as a private punishment, there were public expiations for 
 acts such as treason, that threatened the security of the 
 tribe. The most complete accounts available of the system 
 of Wergild refer to the Germans, and date back to the 
 sixth and seventh centuries. Tacitus, describing German 
 customs of the second century, records public punishments 
 pronounced in assembly of the tribe, for treason or for failure 
 of military duty. 2 This is the first point ; and the second 
 is that the Wergild, which is ordinarily considered to 
 have been a purely private punishment, was, if liberally 
 construed, a social punishment. It should not be forgotten 
 that in primitive times the conception of the State did not 
 exist. The tribe was not considered as constituting a 
 political bond except for purposes of war. It was the family- 
 clan, rather than the tribe, that most closely corresponded 
 to the social organism, and therefore to a political society. 3 
 In regard to its own members the clan exercised a punitive 
 justice, similar to that later exercised within the company 
 of vassals. 4 Thus what formerly constituted the Wergild 
 
 1 On the social origins of punishment see M. Durkheim, " Division du travail 
 social," p. 96, seq, 
 
 1 Tacitus, "De Morib. German," XII. 
 
 8 Brunner, "Deutsche Rechtsgeschichte," I, 13; Lippert, "Die Ge- 
 schichte der Familie," III, 1; Post, "Die Geschlechtsgenossenschaft der 
 Urzeit," chaps, i and vi; Ibid., "Die Grundlagen des Rechts und die Grund- 
 ziige seiner Entwickelungsgeschichte," 46 and 47; Ibid., "Bausteine flir 
 eine allgemeine Rechtswissenschaft," Vol. I, chap, iv; Bernhoft, "Staat und 
 Recht der romischen KSnigszeit," 37, seq. 
 
 See also Kovalevsky, " Tableau des origines et de Involution de la famille et 
 de la propri6te"; and Fustel de Coulanges, "La Cite antique." 
 
 4 On this question and the issues involved consult the study of M . Beau- 
 douin, "La Recommandation et la Justice seigneuriale " (in the Annales de 
 I'Enseignement superieur de Grenoble, Vol. I, 1889), p. 35, seq.
 
 10 THE HISTORY OF PUNISHMENT 25 
 
 became a ransom offered by one clan to another and ceased 
 to be the punishment of one individual for the benefit of 
 another. It became the cost of a settlement, the price of 
 a transaction of war between two clans. 
 
 Thus from the beginning punishment appears to have 
 taken on a social rather than an individual aspect. It was 
 a social reaction against forces hostile to the welfare of the 
 communal life; it was punishment within the group, an 
 internal punishment. But it was at the same time a defense 
 against the enemies without, an external punishment, if 
 one may so term it. When the clans united in tribes, ex- 
 ternal punishment, while retaining its character as an in- 
 cident of war, was yet more organically assimilated to the 
 conception of punishment, for the reason that the community 
 was regarded as having recognized and legalized it under 
 the form of Wergild. 
 
 Wherever society was organized into groups, whether 
 of the family, the clan, or the tribe, we find these two forms 
 of punishment, the punishment as a protection against 
 those outside the group, and the punishment as an expiation 
 with reference to those within the group. When these groups, 
 without losing their identity, formed alliances, the two 
 aspects of punishment were combined while yet retaining 
 their distinct functions. Protection, expulsion, expiation, 
 these form the three sociological functions of punishment 
 present in every society. Individual life requires a means 
 of self-protection, and communal life the right of expulsion. 
 
 From the beginning punishment presents a sociological 
 aspect and takes the form of a routine legal procedure. 
 Some authorities regard it as a necessary outcome of social 
 interaction. It must however be recognized that primitive 
 punishment, which we look upon as external, while yet 
 retaining the aspect of an incident of war, is in the nature
 
 26 INDIVIDUALIZATION OF PUNISHMENT [11 
 
 of a negotiation and is thus a contract vigorously enforced. 
 In the punishment provided by the Germanic common law, 
 as, for example, hi the Salic law, the legal penalty 
 approaches the status of a civil obligation. 
 
 It is plain that there is no sense of indignation against 
 the offender. The sense of culpability, as it appears later, 
 is likewise not present ; or at all events, it is not expressed 
 as a feeling that carries an ethical implication. In a society 
 of warriors where violence prevailed, what we characterize 
 as crime was not considered something abhorrent or detest- 
 able, especially as applied to deeds of violence. Whoever 
 was worsted or taken had to pay the conventional price, 
 quite as though it were an individual affair, a matter of pri- 
 vate law. It is not however the legal form of contract in 
 its relation to private law that needs to be touched upon; 
 that has been done to the neglect of other aspects. 
 
 11. The Growth of Communal Interests and Social 
 Consciousness : the Religious Factor 
 
 But even where the Wergild and external punishment 
 prevailed, the conception of public right gained ground; 
 and judicial procedures of a somewhat different character 
 began to appear. For example, the sense of indignation 
 and public condemnation, which is an early index of the 
 sentiment of culpability, appears with reference to theft 
 and there serves as a needed protection. This was true 
 particularly of covert theft, accomplished by a cowardly 
 ruse, 1 and to other situations no longer approved among 
 primitive peoples, whose customs, however brutal, are yet 
 compatible with a fairly developed morality. The conception 
 of a public penalty appears wherever the prevailing system 
 
 1 Van Schwinderem, "Esquisse du droit pnal actuel," Vol. II, p. 219, with 
 references (note 3).
 
 11] THE HISTORY OF PUNISHMENT 27 
 
 
 
 sanctions the division of the fine between the victim and the 
 community. In the interests of the community the " Fredus" 
 was a compensation for the disturbance of peace and public 
 welfare. 1 But later these relations assume a very different 
 aspect under the influence of Roman law, which transferred 
 all cases of disturbance interfering with the public peace 
 to the jurisdiction of the baron, who replaced the for- 
 mer provincial governor. This parallelism in Merovingian 
 France of two forms of justice side by side is well set forth 
 by M. Fustel de Coulanges. 2 The one was legal in form, 
 and proceeded according to tradition and common law, 
 and was administered democratically through courts of 
 petty juries who awarded the Wergild according to the 
 law; the other procedure was ignored by the law, but was 
 almost the only one described by contemporary writers. 
 It lay outside the administrative and legal pale, and was 
 exercised by the authority of barons and other royal func- 
 tionaries, whose decisions commonly resulted in prompt 
 executions. But at this stage we have left the "Wergild" 
 and are approaching the public punishment as practiced 
 by the Romans; we are entering upon a new stage of de- 
 velopment where new influences appear. 
 
 Yet the ensuing changes would not so readily have been 
 accepted had they not accorded with the established prac- 
 tices and traditions. It seems strange that the conception 
 of public expiation should be of Roman origin. In fact we 
 
 1 Concerning the Fredus and the legal organization in the Prankish period, 
 consult Sohm, cited above, 6; and Brunner, cited above, I, 21. Also 
 Esmein, "Cours elementaire d'histoire du droit francais," 1907. Glasson, 
 "Histoire du droit et des institutions de la France," Vol. Ill, chaps, vii and 
 viii; and Viollet, "Histoire des institutions politiques," I, p. 307. 
 
 8 Fustel de Coulanges, "La Monarchic franque," chaps, xiii and xiv; 
 also Beaudouin, "La participation des homines libres au jugement 
 dans le droit franc"; also Esmein, Glasson, and Viollet, in the works 
 cited above.
 
 28 INDIVIDUALIZATION OF PUNISHMENT [11 
 
 find it in internal punishment as it affects the clan or the 
 tribe. All that is new is the extension of this aspect of pun- 
 ishment, which is at once social and legal, to situations that 
 were originally regarded as having only an individual bearing. 
 The first encroachment upon private punishment was the 
 "Fredus," the setting aside of the indemnity due to the 
 State. Then the private punishment wholly disappeared 
 in a transformed procedure in which the punishment was 
 inflicted not after the manner of a settlement between two 
 contesting clans, but as an indemnity imposed by the tribe 
 acting as an internal police; it thus assumed the status 
 of an internal punishment. From the same circumstances 
 the passing of the private injury and its evolution into a 
 public offense there resulted the dual system of punish- 
 ment. Originally distinct, the two now begin to merge. The 
 public punishment persists with the essential traits of a 
 private punishment, and thus reflects the older, purely 
 objective relations of clan to clan; presently it becomes 
 nothing more than a civil indemnity added to the indemnity 
 to the State. The treatment of punishment as internal 
 gains ground, and carries with it a public expiation, 1 which 
 however is as old as society itself. Doubtless primitive 
 punishment within the group, clan, or tribe was called into 
 play by the natural evolution of the social consciousness. 
 Yet the community administered it according to legal forms. 
 To condemn a traitor within the fold was a very different 
 matter from killing an enemy in war. 2 . 
 
 1 Tarde, "Les transformations du droit," chap. i. 
 
 1 The evidence points to the fact that in the primitive period (in the 
 phase which Gumplotcicz calls syngenetism) crimes within the fold, among 
 members of the same social group, were extremely uncommon. In so far as 
 these were private offenses, they aroused a feeling of astonishment and pity, 
 rather than a communal protest. For this reason, when the protest ap- 
 peared, it was likely at first to assume a religious and later a legal aspect.
 
 11] THE HISTORY OF PUNISHMENT 29 
 
 The infliction of the punishment becomes a sort of religious 
 ceremony. It is solemnized by formalities, sanctioned by 
 law and ritual, imposing one ceremony for the verdict, and 
 another for its execution. An assembly of the tribe is sum- 
 moned for the imposition of the punishment; thereupon 
 the execution takes place according to established rites 
 after the manner of an expiatory sacrifice. It is in fact a 
 sacrifice offered to the gods of the tribe; the victim is not 
 an enemy to be put to death, but one to be immolated to 
 satisfy the demands of the gods. The tribe does not claim 
 the right to kill for the sake of killing; to appease the ven- 
 geance of the gods is the excuse for the immolation. It 
 may then be stated, once for all, as a general principle of 
 social psychology, that societies act only by virtue of natural 
 and necessary laws. But these social needs in some way 
 lead to actions voluntary in appearance; they come for- 
 ward and reach expression as idealized feelings, at first 
 religious, and later logical. Every social organism demands 
 the expulsion or destruction of its internal enemies, but 
 when society kills it has no consciousness or intent of doing 
 so in execution of a law of its own making; its intent is to 
 carry out an act of social or divine justice. The individual 
 has a direct consciousness of his instinctive needs; the 
 community has only a vague consciousness of its logical needs. 
 What the individual feels the community reaches by re- 
 flection. The combined individual needs irresistibly compel 
 communities to action. But practical action requires a 
 rational justification. When men unite in a common pur- 
 pose they mass their instincts, but what they present to 
 one another are arguments; and therein lies at once the 
 value and the danger of the individual. Conduct is due 
 to impulse but takes cover under the sense of justice. In- 
 terest determines, but honor alone is mentioned. This
 
 30 INDIVIDUALIZATION OF PUNISHMENT [ 12 
 
 social solidarity is a terrible force ; but it is also a notable 
 tribute to the intrinsic power of the human mind. 
 
 Such is the explanation of the twofold aspect of primitive 
 punishment. While fundamentally the expression of a direct 
 animal impulse, it comes to consciousness as an obligation 
 to an ideal. The culprit is appraised in terms of his crime; 
 he is looked upon in terms of the evil that he has done, the 
 perfidy realized. But his punishment is referred to a higher 
 source and ascribed to an outraged divinity. He is deliv- 
 ered to the vengeance not of the people but of the gods ; 
 it is they who demand an expiation, and the people offer it. 
 Primitive punishment is thus a composite of religious 
 observances and legal forms, and not primarily a measure 
 of protection. It is a penalty imposed for the evil done, 
 compensating the injury of the transgression by the punish- 
 ment of the transgressor. 
 
 12. Early Views of Objective Crime and Subjective Criminality 
 
 From its first appearance, punishment presents the in- 
 herent and persistent contrast between the conception of 
 it as a penalty, and as a means to an end. The penalty is 
 for the evil done; the end is that of intimidation, of pre- 
 venting evil in the future. This distinction, in its present 
 more scientific formulation, constitutes the actual antithesis 
 between the classic and the modern school. As a social 
 phenomenon it dates back to the beginnings of history, where 
 it appears not as an antagonism but as a fusion of the two 
 attitudes. 1 
 
 1 On the system of the Wergild and of private vengeance 1 see in addi- 
 tion to authors cited above, Kohler, "Shakespeare vor dem Forum der 
 Jurisprudenz," p. 119, seq.\ Giinther, "Die Idee der Wiedervergeltung," I, 
 p. 162, seq.\ Lqffler, "Die Schuldformen des Strafrechts," 1 and 2; Tha- 
 nissen, " reorganisation judiciare, le droit penal et la procedure penale de la 
 loi salique"; and Schroder, "Lehrbuch der deutschen Rechtsgeschichte," 
 36.
 
 12] THE HISTORY OF PUNISHMENT 31 
 
 In primitive times penal law was unquestionably object- 
 tive ; it considered only the deed done, while ignoring the 
 personality of the agent. It was primarily the injury suf- 
 fered that was to be praised. But this objective aspect of the 
 repressive function of punishment carries a very different 
 significance from that now attached to it. It is not alone 
 that individualization is as yet absent, there is equally absent 
 the conception of moral culpability. No account whatever 
 is taken of what are now referred to as extenuating circum- 
 stances ; and there is no implication that the will is to blame 
 or that any kind of moral obliquity is involved. Consequences 
 alone are considered. A personal or social transgression has 
 occurred and demands reparation; a penalty must be im- 
 posed, no matter whether or not the agent is morally to 
 blame. Material damage has been done; the perpetrator 
 must be punished. 
 
 If the injury is a personal one, the injured party need not 
 consider whether or not his enemy acted intentionally. The 
 law offers him a price in requital, the Wergild, which 
 he may properly claim. If the injury is a public one, the 
 community seeks reparation; that is, the gods desire an ex- 
 piation. The evil done requires its victim. Details of intent 
 are not considered or analyzed. To be the material author 
 of an act itself implies moral accountability for one's actions. 
 
 All this has been generally recognized in reference to the 
 Wergild. The system of the Wergild may be described 
 as one that takes no account of responsibility. It is true that 
 certain records give the impression, in reference to public 
 punishments, that the intention of the culprit was really con- 
 sidered. This may have been the case; at all events there 
 is at present a tendency to believe that in primitive times 
 greater importance was attached to the conception of blame 
 and responsibility than has hitherto been allowed.
 
 32 INDIVIDUALIZATION OF PUNISHMENT [ 12 
 
 But this is not the place to enter into the details of this 
 controversy. 1 There are certain accounts which consider 
 the matter of the intent with an emphasis that suggests 
 an innovation; they introduce the conception of the will in 
 terms that show it to have been a recent advance. There is 
 commonly cited an edict of Charlemagne that provides for 
 the case of an unintentional crime. It provides not that the 
 punishment is to be omitted but that it is to be diminished. 2 
 This would indicate that the principle previously practiced 
 imposed the full penalty in all cases, even in unintentional 
 crime. For there could be no more emphatic indication that 
 liability to punishment is independent of moral culpability 
 than by imposing it even in the absence of intent. But why 
 the diminution of punishment? The crime, though unin- 
 tentional and accidental, is not the less punishable; the lack 
 of intent does not constitute an excuse. Even in the eccle- 
 siastical law, which is committed to the recognition of the 
 will and consequently of sin, there are some traces of the 
 distinction introduced by Charlemagne, that of a dimin- 
 ished punishment for an unintentional act. 3 Clearly this 
 distinction carries some new meaning. It refers to offenses 
 due to negligence, which are contrasted with intentional 
 offenses; and the former do not exclude responsibility, be- 
 cause such lack of forethought is itself a fault of the will. 
 The early accounts clearly show the bearing of the distinction; 
 the advance consists in the introduction of the principle of 
 diminishing the punishment and it is a reaction against the 
 neglect of all distinctions, against the application of the full 
 penalty in all cases, whether the crime was intentional or 
 accidental. This indicates that previously the intent had 
 
 1 Brunner, cited above, II, 125; and Loffler, cited above, I, p. 118. 
 
 * "Capitulare missorum" (819), c. 15 (edit. Boretius, I, p. 290). 
 
 * Loffler, cited above, p. 138.
 
 12] THE HISTORY OF PUNISHMENT 33 
 
 been a negligible factor. The conception of moral fault 
 had not entered and was not made a factor of the 
 criminal act. For the crime was determined solely by 
 its material consequences and not by its psychological 
 causes. 
 
 Primitive penal law had not yet developed the conception 
 of moral sin; responsibility, in the modern sense, was foreign 
 to its spirit. This was natural in a state of society not very 
 different from that of wandering tribes, such as existed 
 among our ancestors after the Germanic invasions in the 
 sixth and seventh centuries. What we call crime carried 
 with it no dishonor in the society of that period, least of all 
 murder. It was a normal incident, for a state of war and 
 pillage prevailed. To attack others and to defend oneself 
 were among the everyday incidents of life, consequent upon 
 unrestraint. 
 
 There was, of course, the price to be paid to the family of 
 the victim ; and this fine was fixed in advance. The offender 
 realized his liability. If he committed a murder, he knew 
 in advance what he would have to pay for it. The Wergild 
 determined the cost of the adventure; so much for murder, 
 so much for a broken leg, or arm. This was the hazard of 
 unrestraint. 
 
 Such objective penal law, in which responsibility has no 
 place, becomes a penal law based upon the notion of taking 
 one's chances. This point should be carefully noted, for 
 whenever penal law returns to an objective attitude, this 
 theory of taking one's chances tends to reappear ; it still 
 prevails in the minds of professional criminals. They 
 choose an occupation that involves risks, and they realize 
 the risk which they incur. If they steal, they pay for 
 it, as a debt, by so many months of imprisonment. 
 Society appears as a creditor to whom a debt is due.
 
 34 INDIVIDUALIZATION OF PUNISHMENT [ 13 
 
 With the debt paid one may begin anew; the score is 
 canceled. 1 
 
 Whether this description applies to the Salic law or to the 
 laws of our day is not an idle question. Our laws, and those 
 who apply them, emphasize the hazard of transgression, as 
 well as its corollary, the debt to be paid, which determines 
 the prisoner's fate. They see to it that this is firmly fixed 
 in the minds of the offenders; they apply it to the man who 
 appears in court for the first time, and who feels the full 
 force of the instrument of justice to which he is made to sub- 
 mit; they apply it to him who, upon his first transgression, 
 inevitably passes from the defendant's seat to a prisoner's 
 cell, and who, in due time, will leave it with fixed habits and 
 the conviction that he must give an account of himself. 
 
 This conception is older than modern civilization; its re- 
 vival is due to the influence of modern dogmatic tradition. 
 In its origin it was shaped by direct contact with crude sit- 
 uations ; it was revived as an abstract construction that 
 proceeded independently and in neglect of the facts. It is 
 well to note its source and its historical position. It flourished 
 in periods of barbarism and in times of violence. The prin- 
 ciple which it involved may be simply stated: Punishment 
 is the hazard of unrestraint. 
 
 13. Responsibility, Freedom of the Will, and Sin, as 
 determining Crime 
 
 Such was the position of primitive law, and such will be 
 that of punitive law wherever it emphasizes the objective 
 side of crime. Let us now take a step in advance and con- 
 sider the status of modern civilization with reference to a 
 criminal law based upon responsibility. The question arises 
 
 1 See the interesting observations drawn from the confessions of a noted 
 criminal, reported by Sir Robert Anderson, in "Criminals and Crime" (Lon- 
 don, 1907), p. 8.
 
 13] THE HISTORY OF PUNISHMENT 35 
 
 whether the conception of responsibility was introduced by 
 Christianity and the ecclesiastical law, or by Roman law. 1 
 It seems necessary to distinguish between the popular and 
 the scientific conception of responsibility. The notion of a 
 deliberate transgression for which the individual is respon- 
 sible forms the basis of what in Christianity becomes the 
 origin and support of the doctrine to which it leads, the con- 
 ception of sin. Though the Greek and Roman philosophers 
 were acquainted with this conception before Christianity, it 
 was through the latter that the conception of moral respon- 
 sibility was disseminated and entered the minds of men, to 
 spiritualize the notion of transgression. Yet the conception 
 of responsibility thus formed had but a popular status. It 
 spread like a notion familiarly appreciated and recognized 
 but not as yet analyzed, clearly defined, or scientifically 
 determined. 
 
 This conception of responsibility, which, though vague, 
 had an active hold upon the mind, must not be confused 
 with what the idealistic philosophy of a later day advanced 
 as the doctrine of free will. From the beginning of Chris- 
 tianity the question of the freedom of the will has been a 
 perplexing one. But the controversy was waged within 
 the sphere not of the law but of theology and religion in 
 struggling with the Christian dogmas of grace, divine elec- 
 tion, and predestination. Contradictory statements may be 
 found. The Gospels contain passages expressing views such 
 as sociology now upholds. There is particularly the oft-cited 
 passage declaring that a corrupt tree will produce only evil 
 fruit, and that the good tree will ever bring forth good fruit. 2 
 
 1 See particularly Giinther, cited above, I, p. 263, seq. ; Loffler, cited above, 
 p. 136, seq.; Hinschius, "Kirchenrecht," Vol. IV, p. 691, seq., Vol. V, 342, 
 p. 916, seq.; Engelmann, "Die Schuldlehre der Postglossatoren," 1895. 
 
 2 St. Matthew vii, 16; xii, 33; St. Luke vi, 43. Consult Merkel" Vergelt- 
 ungsidee und Zweckgedanke iin Strafrecht," p. 56.
 
 36 INDIVIDUALIZATION OF PUNISHMENT [ 13 
 
 The conduct of men is determined by the entire mental 
 and moral character. We do not observe in each act as it 
 presents itself the entrance of an impartial and indifferent 
 personality choosing freely between two issues at stake. In 
 any given situation the action that eventually ensues has 
 its origin in the character of the man and is in a measure due 
 to his temperament. There are indeed states of mind that 
 are themselves the result of freedom; but it is not easy to 
 maintain that there are free acts. 
 
 Yet modern statistical and sociological conclusions go 
 little farther than the above citation from the" Gospels. The 
 statement of St. Paul is more positive; 1 and the position of 
 St. Augustine in regard to the conflict between freedom and 
 grace is familiar. 2 For what avails man, and what can he 
 accomplish unaided? Can he effect aught without grace, 
 can he achieve personal merit? These were the problems 
 and the difficulties mentioned by St. Paul, and to these the 
 efforts of theology were directed. It but added a further 
 mystery when the antithesis was accepted of a belief in 
 moral freedom co-ordinately with the belief that man of him- 
 self cannot achieve worth or power. The antithesis remains 
 insoluble. It becomes a mystery which theology alone can 
 adequately solve. However, despite the mystery and the 
 difficulty, or even impossibility, of reconciling these views, the 
 
 1 The Epistle to the Romans, vii, 19, seq.; all of chapter viii; ix, 14, seq. 
 Consult A. Sabatier, "L'apdtre Paul" (second edition), pp. 178-183. In 
 verification of certain statements, consult (on the doctrine of St. Paul) the 
 following: Werrde, "Der Christ und die Stinde bei Paulus" (Freiburg, Mohr, 
 1897); and Bartmann, "S. Paulus und S. Jacobus tiber die Rechtf ertigung " 
 (Freiburg, Herder, 1896). 
 
 1 A brief summary of the teachings of St. Augustine on this point are 
 found in M. Hatzf eld's "Saint Augustin" (Paris, 1897), chap, i, p. 95, seq. 
 
 It is familiar that Luther and Calvin, and later Jansen, based their some- 
 what similar views of predestination upon an inadequate and too literal in- 
 terpretation of certain of these passages of St. Paul and St. Augustine.
 
 13] THE HISTORY OF PUNISHMENT 37 
 
 conclusion was not drawn that this effacement of human 
 personality involved a denial of responsibility. No one 
 doubted that man was a responsible being, clearly not 
 St. Paul or St. Augustine; and still less was this the atti- 
 tude of the Gospels. 
 
 Thus through the ecclesiastical law the conception of 
 responsibility began to prevail in the domain of criminal 
 law, and with it arose the subjective attitude. While previ- 
 ously the law recognized only the injury to the individual or 
 society that is, the material crime in its direct relation 
 the ecclesiastical law looked to the soul of the man who had 
 committed the crime. In its own language, its concern was 
 the soul that had sinned, that was to be healed, purified, 
 and regenerated through expiation and punishment. 1 
 
 The conception of penalty persists but in a purified form, 
 and is transformed into an expiation. Both the word and 
 the idea are ancient and had their origin in the sacrifices 
 offered to appease the gods. But the newer type of expiation 
 presented other aspects. Expiation was not offered as a 
 useless suffering to an inaccessible or implacable divinity, 
 who might find therein a sort of cruel satisfaction. It 
 became the sign of an effective repentance and made the 
 repentance real. 
 
 Punishment is thus transformed and returns to its point 
 of origin in God. Of the several theories accounting for the 
 origin of the right to punish, none is more respectful of the 
 dignity and freedom of man than this, unless it be its ex- 
 treme opposite, the positive doctrine. For here, as else- 
 where, it may truly be said that extremes meet. The right 
 to punish belongs to God alone ; it is not delegated to man. 
 No man, except by divine delegation, has power over the 
 liberty or the life of another; not even society has this 
 1 Pellizari, "E delitto e la scienza moderna" (1896), p. 441.
 
 38 INDIVIDUALIZATION OF PUNISHMENT [ 13 
 
 power. Even the positive school holds that society does 
 not punish but only protects its own interests. 1 The same 
 expression occurs constantly. No one man, and no human 
 community, has sway over the human conscience or the 
 right to judge it. Punishment is more than the exercise of 
 control and authority of one man over another ; it is an 
 attempt to invade the human conscience, to exercise judg- 
 ment upon personality, and, in virtue of this judgment of 
 a man's conscience, to dispose of his life and liberty. In 
 this sense man has no judge but God. So the ecclesiastical 
 law holds ; and while the positive school does not expressly 
 say so, it implies as much, for, of all philosophical systems 
 accounting for the right to punish, the view just set forth 
 would alone be compatible with its conclusions. It is the 
 only view that from the positivist position may be con- 
 sidered scientific. On the other hand the system that makes 
 light of human dignity and is incompatible with individual 
 freedom is the liberal position. There are no principles nor 
 axioms, nothing in the doctrines of liberalism or of rational- 
 ism, that can invest society with the right to punish and 
 legitimize the exercise thereof. In this issue philosophy is 
 helpless; sociology by holding to realities of life has solved 
 half the problem. It regards punishment as required by 
 actual conditions, as a natural law, as a reflex action of the 
 organism. To advance beyond this point the positive doc- 
 trine must find its complement in the ecclesiastical law. 
 This, surprising as it may seem, is not impossible, because, 
 in considering the situation as a whole and fundamentally, 
 such fusion is not incompatible with the consideration of 
 
 1 Observe the combination of these ideas in M. Hardcourt's couplet: 
 "The right to punish for God alone is meant, 
 We dare not punish, only future woe prevent." 
 
 Revue de Paris, January 15, 1898, p. 311.
 
 14] THE HISTORY OF PUNISHMENT 39 
 
 the facts, which belong to science alone, nor with that of 
 faith, which belongs to religion alone. Ecclesiastical law 
 had no need to make such distinctions nor to resolve such 
 contradictions, because it was scarcely aware of them. It 
 was satisfied with the contention that punishment belongs 
 to society only through divine delegation. 
 
 14. The Analysis of the Grounds of Punishment ; Responsi- 
 bility in Ecclesiastical Law 
 
 While punishment thus reverts to the highest possible 
 source for its origin, at the same time it undergoes a thorough 
 transformation. The subjective nature of the agent becomes 
 commanding. The modern conception of a subjective crim- 
 inal law is already wholly contained in the ecclesiastical 
 law, not merely in germ but also in its application. It was 
 applied by the officers of the ecclesiastical court, who were 
 the justices of the church. It was introduced likewise in 
 the practice of civil justice, and possibly with a somewhat 
 unfortunate result. 1 It has been advanced that the admis- 
 sion of responsibility was but a pretext to protect the intro- 
 duction of torture. Though this seems probable, it was 
 clearly not the only consideration, for the whole matter 
 was very complex, and other decisive factors entered. Pun- 
 ishment required proofs, not alone of the facts but of guilt. 
 Accordingly witnesses were appealed to; and as ordinarily 
 the guilty were not willing to confess, so long at least as they 
 could plead innocence, recourse was had to torture to establish 
 their guilt, both as to the deed and the intent. 
 
 Even before the advent of Roman law the subjective 
 attitude was assumed, and the Scholastics applied their 
 methods of definition and logical deduction to questions of 
 responsibility. This does not mean that those concerned 
 
 1 Wahlberg, "Das Princip der Individualisirung," pp. 3-4.
 
 40 INDIVIDUALIZATION OF PUNISHMENT [ 14 
 
 with crime, whether belonging to the clergy or to the laity, 
 considered in detail the freedom of the will in penal ques- 
 tions. 1 The question of free will was considered as a theo- 
 logical one in its relation to grace, and it was asked: what 
 avails the human will compared with divine grace ? 
 
 In criminal law an act of volition was considered a re- 
 sponsible act. 2 The question was not put whether this act 
 
 1 Engelmann, "Die Schuldlehre der Postglossatoren," p. 12, seq. 
 
 2 To obtain the view point of the Middle Ages upon free will the important 
 chapter devoted to it in the "Summa" of Thomas Aquinas should be read. 
 Qusest. 83 ((Euvres completes, edit. Farm., 1852, I, p. 325); also "Comment, 
 in secund. libr. Sentent. Lombard!," 2. D. 24, qusest. 1. There the views of 
 certain scholars, such as St. Bernard, who regard freedom as a condition of 
 mind rather than as a motive force, are discussed and refuted in the usual 
 scholastic fashion. This was the well-known problem of whether the free 
 will was to be considered as a "habitus" or as a "potentia." Thomas Aqui- 
 nas holds to the latter position, yet he identifies freedom with volition (see 
 the "Summa," passage cited) and even with judgment (see the "Sententia," 
 passage cited). 
 
 With reference to the very different question of free will and grace, the 
 trend of the school of Thomas Aquinas is familiar, and the position taken 
 directly opposed to that assumed by the Molinists. This question is very 
 distinct from that of the existence and nature of free will, considered as a 
 natural human faculty, apart from the spiritual realm and the expression of 
 the spiritual life. It serves however to illuminate precisely, though in- 
 directly, the notion of freedom entertained by theology, and the possibility 
 of its acceptance of the psychological mechanism disclosed by scientific ob- 
 servation, without abandoning its essential postulates in the realm of faith. 
 For theology must admit a determinism of divine origin. Such is the opinion 
 of the majority of theologians, and especially of the Thomists. Possibly 
 some reservation should be made in regard to the Molinists; but the differ- 
 ence in question pertains less to the basis of the problem than to the mode 
 of interpreting the premises. The difficulty of reconciling a belief in freedom 
 and responsibility with a supernatural determinism is no more serious than 
 that involved in its reconciliation with a natural and psychological deter- 
 minism. If freedom is compatible with the one, why should it not be with 
 the other ? And its compatibility may lie in the consideration of free will 
 as the counterpart of the self, as an expression of the ego in its relation with 
 the supernatural life, conceived as the means of adjusting the spiritual per- 
 sonality to the service of its physiological conditions. Freedom thus be- 
 comes a state of a free spiritual life. It may similarly be conceived, apart 
 from the question of supernatural intervention, as a state of free spiritual
 
 14] THE HISTORY OF PUNISHMENT 41 
 
 of volition was predetermined or not, whether or not it was 
 conditioned by a series of psychological antecedents, which 
 left no place for the entrance of any motive unrelated to the 
 dominant one. The position may be expressed by such an 
 equation as that an act of will is equivalent to a free act 
 and consequently to a responsible act. 
 
 The discussion considers the application of the formula 
 rather than its basis and justification. Thus Thomas Aquinas 
 takes up in detail the question of determining the purpose 
 to which the will must have been directed hi order that the 
 deed shall be punishable. 1 For example, a person plans 
 and wills an act which in itself is a crime, such as paying 
 
 activity, whereby the personality reflects its worth, and in complete inde- 
 pendence of the inner life develops its vital initiative. This argument does 
 not imply that scholastic theology thus clearly viewed its problems. It is 
 intended only to set forth what would not be in marked contradiction with 
 its position. I am well aware that the theologians have tried to reconcile 
 the fact of divine determinism with that of human freedom, by ascribing a 
 transcendence to the former; that is, by the avowal of an inherent mystery, 
 which is tantamount to dispensing with all explanation. Yet they do not 
 have recourse to the same privilege in regard to the reconciliation of freedom 
 with a psychological determinism. Wherever psychological realities are 
 considered, there is no mystery; for it is urged that one must hold to the one 
 attitude or the other. But this I am not at all prepared to admit. The 
 state of freedom, in respect of an universal determinism, is a metaphysical 
 fact, quite as mysterious as that of predestination or divine foreknowledge; 
 and the mystery accepted in the supernatural order is not more difficult to 
 admit in the metaphysical order of things. 
 
 One may further consider the important passages in St. Bernard, to which 
 reference has been made, and his peculiar view of freedom as a state of mind 
 capable of arousing the acts to which it gives rise and so determining conduct 
 that every action becomes an act of freedom, provided that it goes back to 
 the initial source, which is a state of psychological freedom. He defines 
 freedom thus: "Est enim habitus animi, liber sui." See St. Bernard, "De 
 gratia et libero arbitrio tractatus," chaps, i and ii (Patrolog. Migne, v. 
 CLXXXII, 1002). For an admirable review of the teachings of Thomas 
 Aquinas and St. Bernard on the freedom of the will consult M . Fonsegrive, 
 "Essai sur le libre arbitre" (second edition, Alcan, 1896). 
 
 1 On these points and for the pertinent citations consult Loffler, as above, 
 p. 158, seq.
 
 42 INDIYTOUALIZATION OF PUNISHMENT [ 15 
 
 some one for striking down his enemy. But the agent ex- 
 ceeds his instructions, and in the excitement of the struggle 
 unintentionally kills his victim. Shall the instigator of the 
 assault be responsible for the murder which he has neither 
 planned nor desired ? A similar question arises in case of 
 drunkenness; for example, as when a man who transgresses 
 by consenting to drink (a failing in itself), and then loses 
 his head and commits a crime of which he had no previous 
 intent. Such questions still arise, and have been under 
 consideration since the days of Thomas Aquinas. Likewise 
 other common questions of the present time are clearly an- 
 ticipated, such as indirect or contingent liability. 1 We thus 
 see how the problem of responsibility was considered. The 
 question at issue was not to determine whether the will that 
 initiated the act would have been capable, not in general but 
 in this special incident, to refrain from willing and to resist 
 the impulse or motive that inspired it; the question was 
 solely to determine whether the forethought and intent of 
 the act involved the consequences of the undertaking; at- 
 tention was directed to the objective end and but little to 
 its primary cause. 
 
 15. Consequences of the Older Position: its Contrast with the 
 
 Modern View 
 
 A further consequence of the subjective position is this: 
 that, as will is equivalent to responsibility, so responsibility 
 must vary with the intent, and thus directly with the ob- 
 jective gravity of the crime. There is no analysis of the 
 intrinsic nature of the will considered abstractly and inde- 
 pendently of the act; such analysis would involve an ob- 
 servational psychology which was hardly known to the 
 
 1 On this question of contingent liability see the thesis of M. Round Duval 
 (Paris, 1900).
 
 15] THE HISTORY OF PUNISHMENT 43 
 
 metaphysics of the day. Every act of will, in so far as it is 
 directed to a specified action, is of a like nature and quality; 
 what changes is the purpose to which it is directed. The 
 more the purpose implies an objective criminality, the greater 
 the blame for the intent. Thus the subjective criminality 
 of the agent is determined by the objective criminality of 
 the deed. The one is the measure of the other, and as only 
 that which is objective and accessible can be measured and 
 determined, it was sufficient to gauge the criminality of the 
 crime by the act itself. As such, it was a matter for legal 
 statutes, for the law to determine; for the law alone is qual- 
 ified to appraise the social status of conduct. The conclusion 
 is thus easily reached that as the crime becomes objectively 
 serious the responsibility increases. Every detail of the 
 act is thus considered as intentional and the agent is held 
 responsible for every circumstance aggravating his crime. 
 It follows that in every crime committed the responsibility 
 varies for every offender; and it varies not by reason of a 
 difference of nature and psychological temperament but 
 by reason of the difference of situation in every individual 
 crime. The responsibility varies because in no two crimes 
 are the outward circumstances precisely alike. 
 
 There is accordingly a place for the entrance of individual- 
 ization in judicial practice, though clearly for a very different 
 type of individualization from that now urged. What we 
 of to-day propose is an individualization of punishment 
 determined by the temperament of the agent and by the 
 prospects of his return to a virtuous life, and most of all by 
 the degree of his professional criminality. Such questions 
 were not considered in the older literature. Learned scholars 
 did not deign to consider them; they were too much occu- 
 pied with theoretical principles and absolute formulae. The 
 science of that day left application to current practice; and
 
 44 INDIVIDUALIZATION OF PUNISHMENT [ 16 
 
 it is worth noting that, as exercised by certain ecclesiastical 
 judges under the influence of the subjective attitude 
 which forms the spirit of the church the practice quite 
 commonly took the form of a modern individualization. The 
 ecclesiastical court exercised a disciplinary jurisdiction that 
 made direct appeal to the conscience, and through such 
 control aimed to produce a spiritual reform, not, like 
 political justice, seeking to avenge society for the wrong 
 done and fixing its attention upon the offense without con- 
 sideration of the individual. Such practical discipline, how- 
 ever, was not the subject matter of the writers; it was part 
 of experience and not of law. 
 
 It is familiar that, according to the view which is as old 
 as Scholasticism and closely associated with it, the first prin- 
 ciple of the law is to ignore the facts of life. Apart from 
 certain ecclesiastical or disciplinary jurisdictions in which 
 punishment for reform was uppermost, the prevalent con- 
 ception of punishment was that of setting an example; the 
 end was not the reform of the individual but general in- 
 timidation. Hence the judge, exercising considerable freedom 
 and untrammeled by the law, proportioned the punishment 
 in each case to the requirements of the policy to be furthered; 
 and the purposes of general public policy are very different 
 from those of the sociological treatment of criminals as now 
 attempted. 
 
 16. Early Types of Individualization 
 
 Accordingly, in principle there was no subjective individ- 
 ualization based upon the nature of the agent and independent 
 of the crime committed. What we find is an individualization 
 based upon the crime but detached from the legal forms and 
 the abstract conception of crime in order to keep close to 
 the actual details and to reproduce their physiognomy, as it
 
 16] THE HISTORY OF PUNISHMENT 45 
 
 were, in the execution of the punishment. The punishment 
 became the reaction, the recoil of the act as realized in its 
 setting and as interpreted by the courts commissioned to 
 avenge the body social for assaults made upon it. 
 
 Even in this attitude there may be observed two types 
 of individualization. The one relates solely to the strength 
 of the intent; that is, to the intrinsic qualities of the will, 
 assuming that the will at the moment of action was more 
 or less free to resist the temptation. It aims to appraise the 
 state of mind of the agent; yet it does so not with reference 
 to his true and real qualities, which form the basis of char- 
 acter, as in the modern conception, but according to the 
 degree of intent of the act committed. The modern view 
 would consider equally the examination of the abnormal 
 state of the criminal, and thereby determine the possibilities 
 of resistance. There would be an estimate of the degree 
 of freedom at the moment of action in relation to the act 
 itself; yet not an estimate of the personality as a whole, 
 but of so much of it as participated in the act committed. 
 There would be an attempt simply to gauge the measure of 
 freedom inherent in the crime ; and this would still be an 
 individualization in terms of the crime committed, but con- 
 sidered with reference to the will of the individual. For it 
 is clear that the greater or less strength of the intention 
 embodied in the crime influences its gravity and the degree 
 of emotional indignation which it arouses. It thus would 
 become an individualization based upon the degree of respon- 
 sibility. The ancient law however did not recognize it as 
 such, at least not officially; nor is it thus found in the texts 
 or in the commentators. Legally, every intentional act 
 necessarily involved a like responsibility; for volition was 
 regarded as identical with responsibility; and there was no 
 recognition of partial responsibility.
 
 46 INDIVTOUALIZATION OF PUNISHMENT [ 16 
 
 The second type of individualization as recognized by 
 ancient law was that derived from the material circum- 
 stances of the crime. For example, no one murder is exactly 
 like another. There enter into consideration the fact of 
 premeditation or the dominance of a momentary impulse ; 
 the personal relations to the victim; the end in the pursuit 
 of which the crime was committed; the greater or less cruelty 
 attending it; and many other circumstances. Obviously 
 among these circumstances some relate to the intent and 
 others to the material setting of the crime; the former 
 constitute an individualization based upon the degree of 
 responsibility. This distinction and th s psychological an- 
 alysis however had not yet appeared. Even when the 
 question of the subjective circumstances was raised (such 
 as premeditation), it was not the degree of freedom that was 
 considered, but the manner of the execution of the crime 
 and the greater or less degree of cruelty and unconcern which 
 it disclosed. Attention was directed wholly to the material 
 circumstances of the crime; and these varied with its ac- 
 cessory details. It was according to these details that the 
 punishment was modified and individually adjusted. It was 
 a purely objective individualization; though, for each indi- 
 vidual case it was determined wholly with reference to the 
 material setting of the crime. 
 
 Such individualization was admitted and fully practiced 
 in ancient law. 1 The judge had full power to adjust the 
 punishment according to the gravity of the offense, not the 
 legal, but the actual gravity; and in the determination of 
 the penalty he was not bound by the law. The punishment 
 could be regulated with reference to each action and in pro- 
 portion to the gravity of each particular crime. There was 
 
 1 See Jousse, "Trait de la justice criminelle," first part, HI (edit. Paris, 
 1771), p. 86, seq.; and Imbert, "Pratique judiciaire," Book III, chap. xx.
 
 17] THE HISTORY OF PUNISHMENT 47 
 
 not one prescribed punishment for murder and another for 
 theft; there were merely certain traditional punishments 
 sanctioned by usage. From this repository of traditional 
 punishments the judge selected the one suitable to the 
 special case, and he was permitted (though it must be under- 
 stood that this was exceptional, and rested solely with the 
 judge), in case the list of ordinary legal punishments did 
 not provide a punishment suitable to the crime, to impose 
 one more fitting and better adjusted to the case, under the 
 name of an extraordinary punishment. It is difficult to 
 conceive a system of judicial individualization more elastic 
 and more closely conforming to present conceptions of a 
 true criminal economics. The system has been called that 
 of discretionary punishment ("peines arbitrages"). And as 
 the law did not lay down regulations instructing the judge 
 as to his decisions, he might very well take the modern point 
 of view, which classifies by criminals and not by crimes, 
 and individualize the punishment accordingly. If ordinarily 
 the individualization exercised was an objective one, it was 
 because the subjective type did not conform to the views 
 of the day, and, indeed, had not yet been suggested. Other- 
 wise nothing in the law would have prevented the judge of 
 the old regime from anticipating Lombroso and the position 
 of the Italian school. 
 
 17. The Discretionary Power of the Judge, and 
 Individualization 
 
 In maintaining that ancient law had no legal punishments 
 in the modern sense of the word, that is, punishments 
 specified by the law for designated crimes, we follow the 
 accepted opinion. Ancient law was unaware of our modern 
 principle: "nulla pcena, nullum crimen sine lege." There 
 were however certain legal texts that fixed definite punish-
 
 48 INDIVIDUALIZATION OF PUNISHMENT [ 17 
 
 ments as a penalty for crimes of intent that carried a special 
 criminal status; they appear in common law, and particu- 
 larly in the Royal Ordinances. In this connection it is well 
 to have in mind wherein consisted the free discretion of the 
 judge. 
 
 Let us take an edict carrying a perfectly definite punish- 
 ment for a definite crime; for example, the edict of Louis 
 XIV with reference to poisoning. Even in such cases the 
 judge was not bound by the letter of the law. He could 
 mitigate the punishment, though this was rarely done, but 
 particularly he could increase it and exceed the punish- 
 ment prescribed by the law, and if the punishment in 
 question was that of death, he could impose a more cruel 
 torture to apportion the punishment to the gravity of the 
 crime. 
 
 In this system of discretionary penalties, in which not 
 alone the execution of the punishment but the determination 
 of the penalty itself is left to the free discretion of the judge, 
 we have, as already noted, a system of judicial individual- 
 ization in the large sense of the word. It was not an arbitrary 
 procedure, but in principle and practice was based upon an 
 obvious fact, which may be thus stated: the law cannot 
 anticipate the punishment best suited to each particular 
 case; it can only set a scale of offenses indicating the status 
 of the several crimes as they affect the social welfare, and 
 with reference to the danger to which society is exposed 
 through each class of crime. But the law cannot foresee 
 the impression produced by any individual crime as com- 
 mitted; and so the judge alone is in a position properly to 
 determine at once the severity and the nature of the punish- 
 ment. Briefly, the law is unable to anticipate the mitigating 
 or aggravating circumstances of the case, and thus commits 
 these to the charge of the judge.
 
 18] THE HISTORY OF PUNISHMENT 49 
 
 18. The Protection of the Social Interests 
 
 In a system of this kind the judge stands for the protection 
 of society. The judiciary power becomes not merely the ex- 
 ecutive of the law but the coadjutor of the law in its chief 
 function, that of providing public security. This becomes 
 a function of the judiciary institution rather than of legal 
 determination. The law in itself is powerless to effect this, 
 because the requirements of social protection vary for every 
 crime and for every criminal. The social gravity of the 
 offense cannot be determined in advance. The law may 
 very well say that murder in itself is more serious than theft 
 because the lives of citizens are more precious than their 
 belongings; but how can it anticipate the gravity of each 
 particular murder? In fact, all that the law can do is to 
 set the relative scale of values of the interests protected 
 by punishment; for punishment has no other material 
 end. It has, however, a specific purpose, which is to prevent 
 the repetition of crime. The penalty provides a formal pro- 
 tection; and this protection is directed in behalf of social 
 values, of interests that have a social value for the individual: 
 his life, his property, his honor. This is Liszt's theory 
 of the "Rechtsgiiter." l From a social and legal point of 
 view the law serves merely to appraise the relative values 
 of the interests protected by punishment. But to anticipate 
 the relation of the punishment to a particular crime com- 
 mitted is manifestly impossible. The law can only indicate 
 that life should be more strongly protected than property. 
 But to conclude in the abstract and as a psychological con- 
 clusion that a murderer is more criminal than a thief and 
 is so in all cases, is an assumption that may readily prove 
 
 1 Liszt, "Lehrbuch des deutschen Strafrechts" (edit. 1905), 12; 
 see Ihering, "Der Zweck im Recht," Vol. I (second edit.), p. 492; Binding, 
 "Die Normen" (edit. 1890), 50, p. 338.
 
 50 INDIVIDUALIZATION OF PUNISHMENT [ 18 
 
 to be absurd. In ancient law the judge had the authority 
 to punish a murderer no differently than a thief; and es- 
 pecially could he apply to theft punishments ordinarily 
 reserved for murder. Such was the province of justice. 
 
 If, in a measure, punishment is the protest of public sen- 
 timent and the expression of social reproof, it is not possible 
 to anticipate the emotion and the feeling of indignation 
 aroused, and to take account thereof in the application of 
 punishment in each particular crime. If the judge is to 
 become the interpreter of communal justice, he alone can 
 judge the social disturbance occasioned by one crime or an- 
 other. The judge becomes, in fact, the trustee of public 
 security, and in ancient law he played the part according 
 to his lights. It is hardly necessary to recall the spirit in 
 which he undertook the task and applied the individual- 
 ization of punishment with which he was charged. Bailiffs, 
 wardens, courts of final jurisdiction, and appellate courts 
 rivalled one another in the zeal and in the severity not 
 to use a stronger expression of the choice of punishments 
 and their application. The policy of a judicial individual- 
 ization entrusted the social defense to the body of judges; 
 it placed it in good hands. The France of those good old 
 days did not have the problem of the habitual criminal; 
 and this is hardly surprising, when one remembers that in 
 those days criminals were hanged for their first theft. Such 
 severity, not to say barbarity, of practice may profitably 
 be recalled in order to understand the spirit of the penal 
 system that had its origin in the Revolution and in the 
 codification made during the Empire; or, more correctly 
 expressed, that was due to the classic spirit which they 
 reflected, the psychology of which Taine has recorded in 
 his memorable pages. 1 
 
 1 Taine, "L'ancien regime," Book III.
 
 19] THE HISTORY OF PUNISHMENT 51 
 
 19. The Classical and the Historical Position 
 
 It has been agreed to call this purely objective penal sys- 
 tem the classic theory, not in the traditional sense, but in 
 conformity with the spirit of abstract and logical general- 
 ization, characteristic of intellectual activity in France 
 for at least two centuries. Against such classicism a reac- 
 tion has appeared, affecting all realms of thought; to it the 
 works of Taine and of the historical school have influentially 
 contributed. But in fairness it should be pointed out how 
 far the origins of the classic theory form its justification. 
 It arose at a time when history had not yet become, as it is 
 now, a scientific study, but was looked upon as an unalterable 
 record, despotic and austere. The present historical school is 
 wholly opposed to any such view. It favors evolution and 
 progress, and rejects the conception of history as the crystal- 
 lization of facts. The classic position in turn was the 
 issue of a protest against the subjective system, which made 
 it possible for the judge to wreak personal vengeance for the 
 slightest transgression. 1 
 
 As is true of political parties, the pendulum swings from 
 one policy to another. Accordingly let us be careful not to 
 substitute for the classic system, which has had its day, a 
 "subjectivism" that would make it possible for a judge to 
 sentence to the gallows for slight offenses, or to secure im- 
 munity or confinement in an asylum for capital crimes. 
 History gives no support to a rigid fatalism. It is a living 
 determinism in which we form the decisive factors. It is for 
 us to direct the course of history towards the welfare of the 
 social life and the progress of humanity. 
 
 1 A. Esmein, "Precis 616mentaire de 1'Histoire du droit frangais de 1789 a 
 1814" (Paris, 1908). p. 250, seq.
 
 CHAPTER III 
 
 THE CLASSIC SCHOOL 
 
 20. The Eighteenth Century Philosophy of Crime. 
 
 21. Modifications and Concessions of Later Codes. 
 
 22. Advantages and Defects of the Classic System. 
 
 23. The Reaction and the Neo-Classic Transition. 
 
 20. The Eighteenth Century Philosophy of Crime 
 
 THE preceding historical survey prepares the way for a 
 review of the classic doctrine. If we are justified in taking 
 a harsh view of this system, it is by reason of its present 
 consequences and not by any lack of justification in the past. 
 What is conventionally known as the classic system of pun- 
 ishment is the direct issue of the philosophical school and 
 of the principles of Rousseau's "Social Contract." Its most 
 distinguished representatives are Beccaria in Italy, Bentham 
 in England, and Feuerbach in Germany. It was inevitable 
 that the general intellectual movement of the eighteenth 
 century should include a consideration of penal law, and 
 of the arbitrary and cruel practices that then characterized 
 it. The immediate and urgent need was to abolish the ar- 
 bitrary power of the judge and to mitigate the severity of 
 punishments. In spirit and expression ancient law favored 
 severe and arbitrary punishments along with all the abuses 
 to which they led. Accordingly the first measures of reform 
 were directed in a practical spirit against the prevalent sys- 
 tem of punishments. Yet the school of eighteenth century 
 thinkers was primarily one of doctrinaires and theorists.
 
 20] THE CLASSIC SCHOOL 53 
 
 They could not conceive of practical reform unrelated to a 
 philosophical basis. 
 
 However, before abolishing arbitrary forms of punish- 
 ment, the philosophers of the eighteenth century stopped 
 to inquire as to the nature of punishment and the origin 
 of the right to punish. The latter problem, simply disposed 
 of by history and sociology as an inherent right of society, 
 was in reality a perplexing philosophical issue; and par- 
 ticularly for those who withdrew from the individualistic 
 position of Rousseau 1 and the Encyclopedists. To claim 
 the right of vengeance for society is to return to savagery 
 and places society on a par with the victor who puts his 
 prisoners to death; to base the right on the ground of an 
 expiation through punishment is to assume the position of 
 religious dogmatism. The only other ground for justification 
 of punishment is its deterrent effect to make the punish- 
 ment of the guilty serve to intimidate those tempted to 
 imitate their example, a general or collective prevention, 
 as the Germans say. 
 
 By what right does society bring to bear upon 'the offender 
 such collective prevention as proceeds by depriving him of 
 liberty or of life? In a system founded upon inalienable 
 personal rights, shall the State have authority over life and 
 liberty? Rousseau would reply that this could not be done 
 unless a citizen had forfeited his right to liberty, or even to 
 life, by reason of an attempt against the welfare of the com- 
 munity, a position involving the theory of the " social 
 compact." The right to punish comes to society by way 
 of a contract, and may be exercised only within the limits 
 of such presumed contract. Such limits prescribe punish- 
 
 1 For Rousseau's political theories and their connection with criminology, 
 see Liepmann, "Die Rechtsphilosophie des Jean-Jacques Rousseau" (Berlin, 
 1898), especially chap. iii.
 
 64 INDIVIDUALIZATION OF PUNISHMENT [20 
 
 incuts on the basis of equal rights. Any one may be called 
 upon to forfeit his right to liberty, but upon the condition 
 that others do the same. Punishment is thus an enforced 
 exercise of the general will; this, as described by Rousseau, 
 indicates the combined concessions made by individual 
 citizens and thus becomes the expression of law. 
 
 Let us return to the primitive theory as embodied in the 
 Salic law. There punishment becomes a right of the in- 
 dividual guaranteed by the law. The right pertains to the 
 injured party, which, in this case, is society. But it is like- 
 wise a personal right of the offender, who has the vested 
 right of paying no more than another and of paying the 
 precise rating of the injury, whether by fine or by imprison- 
 ment is immaterial. The price becomes a prescribed and 
 invariable forfeit: so much for such and such a crime or 
 transgression. 
 
 This system of criminal law obtained at the time of the 
 Revolution. In 1791 the French code, however imperfect 
 in itself, admirably reflected the spirit of the times. Pun- 
 ishments were fixed by law which permitted the judge no 
 discretion to fit them to the crime. Punishments were set 
 in accordance with the code of 1810, but, with the obvious 
 exception of life sentences, presented a maximum and mini- 
 mum limit, between which the judge might vary and adjust 
 the punishment to the particular circumstances of each 
 offense. In contrast to what obtained in ancient law, the 
 judge's power of sentence could be exercised only between 
 the two set limits. In the system of the penal code of 1791 
 these limits did not appear. In it punishment was absolutely 
 fixed, as in the Salic law. It was a fixed tariff; for such a grade 
 of theft, so many years in prison or at penal servitude, in 
 principle, not a day more or less. No account was taken 
 of the circumstances of the deed, nor of the possible prov-
 
 20] THE CLASSIC SCHOOL 55 
 
 ocation, nor of the antecedent situation. All who had 
 committed the same kind of theft were placed upon the same 
 footing. They were regarded as equally responsible. The 
 punishment imposed was the same for all. The judge was no 
 more than a mechanical instrument to administer the pun- 
 ishment; he was the automatic wheel of fate that dealt the 
 punishment as the law prescribed; his sole function was 
 to confirm the evidence of the facts. 
 
 This system of penal law was accordingly objective, as 
 was the Salic law. There was however much of the spirit of 
 the penal law of the sixth century that could not be revived. 
 For civilization had progressed and there was a background 
 of Christian conceptions that could not be set aside. The 
 objective equity of the Salic law may be appropriately repre- 
 sented as a system of indemnities to be paid, as a penal law 
 that ignored responsibility. But the Christian spiritual 
 conception of freedom as a personal and psychological 
 possession had never been more exalted. Society had no 
 power to punish by the deprivation of liberty except when 
 such liberty had been voluntarily jeopardized. Punishment 
 could be directed only against a free act. The judge had 
 merely to examine to what extent the agent may have been 
 morally free in his actions. 
 
 It was presumed that those guilty of the same crime (theft, 
 murder, etc.) must have been equally free agents and con- 
 sequently equally responsible. Each crime was assumed to 
 involve a like moral freedom, and to imply a like responsibil- 
 ity. All this corresponded substantially to the conception 
 of the freedom of the will in the traditional philosophy. If 
 freedom is to be considered as the power to decide in each 
 situation by a controlling choice with no intrusion of any 
 other inner impulse, then there can be no such thing as 
 partial freedom. The status of every man in resolving upon
 
 56 INDIVIDUALIZATION OF PUNISHMENT [ 21 
 
 the same act is parallel. He has the choice of two courses: 
 to act or to refrain. The responsibility varies not with the 
 measure of freedom but with the gravity of the act in ques- 
 tion. It is not the place of the law to consider anything but 
 the social and material seriousness of the crime. All guilty 
 of the same crime present the same responsibility. Hence 
 there is no pertinence in taking into account the agent, no 
 advantage in considering the personality. Ignoring such 
 considerations the deed alone is to be dealt with. That the 
 same responsibility merits the same punishment thus be- 
 comes the conclusion of a supposedly spiritual theory of the 
 freedom of the will. 
 
 By the exercise of practical reasoning analogous to that 
 expressed in primitive law, the criminals themselves reached 
 about the same position. To them the legal punishment, 
 definitely set by the law, stood as the risk incurred, as the 
 price of the crime. As von Liszt remarks, the penal code 
 becomes the true Magna Charta of the criminal. It is his 
 written constitution; he knows just how far he may venture 
 within the law; and if he brings the arm of the law down 
 upon him, he knows precisely the risk he incurs. The main 
 point is to be a good sport and a good loser, and consider 
 the many successes as against the occasional failure. We 
 are now beginning to recognize that in a situation of this 
 kind the odds of the game do not favor society. 
 
 21. Modifications and Concessions of Later Codes 
 
 Though the severity of this objective classic theory of the 
 Revolution was tempered in the penal code of 1810, its 
 essential principles underwent no change. But the system 
 of set and invariable punishments was modified. There 
 were introduced, as above noted, variable punishments be- 
 tween the two set limits fixed by the law. But this implied
 
 21] THE CLASSIC SCHOOL 57 
 
 no change of attitude in the classic theory of responsibility. 
 The judge acquired some discretion in setting the punish- 
 ment, which in appearance suggested the power of individ- 
 ualization ; yet this did not imply that the subjective 
 circumstances in terms of responsibility were deemed ade- 
 quate to modify the punishment for a given crime. Respon- 
 sibility was determined, as before, by the freedom of the will; 
 and a free will implied the power to choose equally between 
 two courses, which in turn depended upon the motives be- 
 tween which the choice was to be made. But the issue is 
 not predetermined nor definitely conditioned by the motives; 
 it is not regarded as the necessary consequence of a pre- 
 determined subjective state, or otherwise than as a supreme 
 act of freedom. The free choice is like an act of sovereign 
 creation, by which the ego in the choice of conduct decides 
 as would an absolute master, unaffected by any imposed 
 pressure. The creative act partakes of the absolute; for 
 the same situation it inevitably remains the same for all. 
 If the will were subject to an extraneous influence it would 
 no longer be free. As soon as any measure of influence by 
 circumstances is admitted, the door is opened for all possible 
 influences, and inevitably admits the extreme supposition 
 of an absolute determinism. There is no middle ground. 
 A partial freedom equally involves determinism. 
 
 The variable factor affects only the outward conditions 
 of responsibility, that is, the material circumstances of the 
 act. For even an objective view of crime, as in ancient law, 
 recognized that crimes were never alike; such objective 
 variations the law could not anticipate but committed to 
 the jurisdiction of the judge. 
 
 Consequently the penal code of 1810 established not a 
 judicial discretion but a certain elasticity of punishment, 
 by introducing sentences variable between two fixed limits.
 
 58 INDIVIDUALIZATION OF PUNISHMENT [22 
 
 It is well to remember that in theory the code of 1810 did 
 not admit extenuating circumstances for crime. The judge 
 had no authority to lower the punishment below the legal 
 limit, or to substitute one punishment for another. In cases 
 in which the law imposed penal servitude for stated periods, 
 the judge could impose from five to twenty years; he could 
 not substitute solitary confinement. Whatever the circum- 
 stantial details of the crime may have been, the crime, in 
 terms of its class, and especially of its social gravity, remained 
 the same. If, for example, it was a case of burglary, then 
 the offender had to undergo the punishment for that offense; 
 and in case of murder, this system reached the almost in- 
 conceivable conclusion that all murderers were to be sub- 
 jected to the same degree of punishment. Murder, whatever 
 the circumstances, was liable to penal servitude for life; 
 and, as no extenuating circumstances were considered, all 
 murderers without distinction were given life sentences. 
 
 It is evident that the position of the code of 1810 was 
 fundamentally that of 1791 and was purely objective, placing 
 all guilty of the same crime on the same footing. Quite 
 after the manner of the theorists of 1789 who constructed 
 their political system upon the basis of an abstract con- 
 ception of humanity a type that had no real existence 
 the legislators of 1810 established their penal code in terms 
 of the abstract criminal, an anonymous individual found 
 guilty of a specified crime. 
 
 22. Advantages and Defects of the Classic System 
 
 This penal system had the great merit of treating all alike 
 and the still more indisputable merit of forming an adequate 
 check against arbitrary sentences. But the equality thus re- 
 alized may well be considered most unfair in that it treated 
 all men as mere digits. As applied to criminals, this equality
 
 22] THE CLASSIC SCHOOL 59 
 
 in terms of punishment commonly ran the risk of introducing 
 a cruel and intolerable injustice, in that it brought together 
 in perilous promiscuous association those guilty of the same 
 crime, whether they happened to be first offenders, habitual 
 criminals, men blinded by the sudden passion of the moment, 
 thorough degenerates, those unaffected in character by 
 their crime, or those whom the system had thoroughly con- 
 taminated and who became the means of corrupting their 
 associates. For all, the punishment was similar or nearly 
 so, and upon this feature the system prided itself. But 
 the equality was only in name, and in its popular appeal; 
 for the equality that justice demands is an equality of treat- 
 ment for the same established degree of criminality. But 
 how can one establish any comparison between the insensi- 
 tiveness of the recidivist, hardened to prison life, a total 
 stranger to the exciting emotions of a first sentence, and the 
 keen impressionability of the first offender upon contact 
 with his cruel and humiliating fate; or between a vagrant, 
 whose self-esteem is unaffected by punishment save in the 
 small measure of character that he may have saved from the 
 general wreck and ruin of his career, and a man of social 
 station whose position is involved in proportion to the con- 
 sideration he enjoyed; or, once more, between one accustomed 
 to the amenities of life, for whom the prison routine must be 
 intolerable, and the poor fellow without food and shelter 
 who has come to look upon jails and even the penitentiaries 
 as dispensers of hospitality, offering an assured living and a 
 shelter for the unemployed. 
 
 The sole virtue of the system and though it has no 
 other it may be conceded that it accomplishes this perfectly, 
 lies in its elimination of arbitrary sentences. In every case 
 for the same crime punishment is prescribed by the law. The 
 judge has no power to alter it; he has no occasion to probe
 
 60 INDIVIDUALIZATION OF PUNISHMENT [22 
 
 the consciences nor examine the hearts of those whom he 
 sentences. The mental condition at the moment of the crime 
 is not considered. A crime has been committed; there is 
 an injury to be made good towards society and the law. 
 The reparation is fixed by the law ; it must be paid in the 
 same terms for all cases, and regulated not by the hardship 
 which the punishment imposes upon the individual but by 
 the measure of injury which the crime has inflicted upon 
 society. The injury to an individual or to society remains 
 the same, independently of the agent. The punishment is an 
 indemnity and the criminal charge approaches the status 
 of a civil injury. Both are based upon the idea of damage, 
 and both result in a reparation corresponding to the injury 
 done, without involving the consideration of the personality 
 of the doer. The careless man, who, in passing, breaks a 
 show-window must pay its full value whatever may be his 
 resources. This is a trifle to the man of wealth, while it 
 considerably embarrasses a poor man, dependent upon a 
 small income. The same principle is applied to criminal 
 offenses that give evidence of a vicious disposition. When 
 the vicious refuse to meet the demands of social life, they pay 
 like anybody else; only they pay in the coin of imprisonment. 
 But the nature of the debt is not determined by that of the 
 debtor. Whether the latter feels the injury to his honor or 
 to his future, and hi what degree, society does not consider. 
 The theory is notably false, inhuman, and supremely unjust, 
 but obviously simple and easy to apply. Here is an injury 
 to be repaired, and there a punishment that will make it 
 good. It resolves itself into a question of penalty and rep- 
 aration, a question of the proportionality between the ill 
 which the offender has caused and the ill he is to undergo. 
 This proportionality expresses the summary and harsh 
 conception of punishment and the undeveloped conception
 
 23] THE CLASSIC SCHOOL 61 
 
 of justice which it reflects. It is at once barbaric and crude, 
 to say nothing of its being the most dangerous theory for 
 society; and it is so, because, though it attempts to make 
 criminals pay for their debts, it does not succeed in preventing 
 them from contracting new and equally irresponsible ones. 
 
 23. The Reaction and the Neo-Classic Transition 
 
 However this may be, such was the system; and it may 
 be summarized hi this formula: the punishment for the same 
 crime should be the same, because the responsibility is the 
 same. As a system recognizing responsibility in its objective 
 aspects alone, it considers only the material injury inflicted 
 and in no measure the state of mind of the transgressor. 
 
 At every point this artificial and abstract construction 
 runs counter to the facts of life. It sets up abstractions and 
 constructions of a wholly logical and ideal type, while in 
 practice criminal law must deal with concrete realities. 
 Ultimately, practice must make or mar every system. Asa 
 consequence a neo-classic theory is coming to the front, which, 
 without abandoning the classic position and while taking 
 its stand upon the same data, is yet proposing to transform 
 and revolutionize the legal structure of the penal code. It 
 is developing apart from the law and even in opposition to 
 it. It is proceeding under the influence of the facts primarily, 
 but also under the inspiration of a new school, properly 
 called the eclectic school. In a measure it reflects the ac- 
 credited traditional position; yet it contributes a new in- 
 sight growing out of the increased emphasis of the subjective 
 aspects of the problem of crime, and contributes as well to 
 the complementary problem of social protection. A similar 
 emphasis is placed upon conditions and their investigation, 
 which in turn is a creditable characteristic of the French 
 school. It proceeds directly to conclusions without sue-
 
 62 INDIVIDUALIZATION OF PUNISHMENT [ 23 
 
 cumbing to the attraction of theories, and keeps to its 
 practical task without the minute discussions of the purpose 
 of punishment, which appear in the German writers. 
 
 The movement presents a distinct revival of interest. But 
 the neo-classic theory is as yet only an abstract in outline 
 of a future construction; the detailed features have still to 
 be brought together and shaped to a system. This must 
 be borne in mind in considering, as is next to be done, this 
 newer doctrine. It presents a position sufficiently definite 
 and clear-cut in its larger features, yet it is quite variously 
 developed according to the personally favored views of its 
 several loyal adherents, each of whom seems to bring for- 
 ward a new and different shade of opinion. Indeed, if atten- 
 tion were to be confined to these several dissensions and 
 reservations, the movement 1 would seem to dissolve into a 
 fictitious unity without any practical reality. What follows 
 may serve to correct such impression. 
 
 1 Its most distinguished representative is Rossi. Its adherents include 
 distinguished university professors, such as M. Ortolan. The school is 
 further represented by such brilliant exponents as M . Garraud (see his Precis 
 du droit criminel, Paris, 1906), whose able writings are deservedly popular. 
 The perspective of the data and conclusions is well set forth in the works 
 of M . Joly. It is the inspiration of the work of the Socittt gtnbraLe des pri- 
 sons. It is also finding its way into academic instruction, such as the courses 
 given hi Paris by M. Leveiltt; and is represented by the contributions of the 
 representatives of the higher education, M. Le Poittevin, M. Gar$on, and 
 M . Garraud. See also the account of the new modern judicial school as it 
 calls itself hi the study of Ugo Conti, "II delinquente nel diritto criminale, " 
 in the Archivio giuridico, Vol. LII (1894). p. 266, seq.
 
 CHAPTER IV 
 
 THE NEO-CLASSIC SCHOOL AND INDIVIDUALIZATION BASED 
 UPON RESPONSIBILITY 
 
 24. The Assumption of Free Will: the Fallacy involved. 
 
 25. Empirical Conditions of Freedom: Premeditation. 
 
 26. Potential and Actual Freedom: Applications. 
 
 27. The Social Regulation of Conduct. 
 
 28. Responsibility proportioned to the Degree of Freedom; Irresponsibility 
 
 and its Establishment. 
 
 29. The Basis of Mitigation and of Exemption from Punishment. 
 
 80. The Individualization thus resulting; Practical and Theoretical 
 
 Objections. 
 
 31. Remote and Immediate Responsibility. 
 
 32. The Social Responsibility for Crime. 
 
 33. Motives and the Impressionism of Juries. 
 
 34. Individualization resulting from the Variable Attitude of Juries. 
 
 24. The Assumption of Free Will : the Fallacy involved 
 
 IN common with developing systems the new movement 
 in penology presents two aspects ; the one mainly destruc- 
 tive, and the other constructive. It is likewise natural in 
 the evolution of a doctrine that it should proceed upon the 
 criticism of existing institutions. 
 
 Let us consider the critical side. The classic system, 
 though apparently simple, as soon as it enters the field of 
 application, finds itself directly in conflict with two ir- 
 resistible forces, public opinion and science. It is in conflict 
 with the former because the classic penal system inexorably 
 places every one upon the same footing, treating alike those 
 who may claim attention and sympathy, and those who 
 excite aversion. It is in conflict with science because it is
 
 64 INDIVIDUALIZATION OF PUNISHMENT [24 
 
 based on a supposition at variance with established truth, 
 the supposition that every man in the same situation enjoys 
 a like freedom of action. In this issue popular justice, which 
 judges the man in preference to his act, is in full accord with 
 the justice of equity; for the summary justice that disre- 
 gards distinctions and allows no concessions violates the 
 common instincts of humanity and charity. Men of science, 
 philosophers, physicians, and jurists alike refuse to accept 
 this antiquated view. They are almost unanimous in re- 
 fusing to admit that a like freedom of action obtains under 
 like conditions, or that a crime is to be considered only in 
 terms of its outward character and the gravity of the offense, 
 and not in terms of the degree of inner conflict which had 
 first to be overcome. A distinct change is observable in 
 the conception of responsibility and an approach is made 
 to an individualization based thereupon ; it appears as 
 well in theory as in practice, in the exposition of principles 
 and in the attitude of juries. 
 
 A new epoch is approaching, marking a development or 
 rather a disintegration of the older classic position. This 
 disintegration is significant and is demanded by the logic 
 of events. The older classic school rested upon a fiction 
 which consisted in believing that in regard to the same act 
 every man had a like freedom of action; the newer view 
 replaces it by a truth. The older position was based on 
 two assumptions: the first, the belief that every one who 
 realized the nature of his acts was necessarily free, for every 
 willed action was regarded as a free act ; the second, the 
 belief that freedom existed to a like extent for all men with 
 reference to the same act. If such were really the case, if 
 for all persons there were operative identical factors of equal 
 value and degree, there would be no need to consider the 
 individual. He might as well be eliminated from the penal
 
 24] THE NEO-CLASSIC SCHOOL 65 
 
 equation, just as in an algebraic equation, equal quan- 
 tities on the two sides may be cancelled. 
 
 But can the freedom of the will be so simply conceived? 
 Let us consider the first assumption, that every willed act 
 is a free act. The formula may be accepted in the sense in 
 which the "spiritualists" maintain that every voluntary 
 act emanates from a being capable of exercising freedom. 
 But this statement must not be confused with the classic 
 formula of the French penal law which held that every vol- 
 untary act was a free act. Volition and freedom are not to 
 be made identical. To posit these as the two terms of an 
 equation is wholly false. 
 
 The fallacy enters because a possible state of affairs is 
 confused with the situation that actually is realized. As a 
 possibility the deed accomplished may be considered as on 
 a par with the alternative of restraint. A man fires a gun 
 at another; we know that to fire or not to fire are like pos- 
 sibilities. We conclude that the murderer was well able to 
 realize the alternatives, to act or to refrain. If we believe 
 thereby to have proven that he was as free to act in the one 
 way as in the other, and thus to have established the free- 
 dom of his will, we are relying upon an argument that 
 clearly is fallacious. The fallacy consists in substituting 
 a general and abstract situation for a special and concrete 
 one. It is true that man abstractly considered enjoys the 
 potential power to realize an act or to refrain therefrom. 
 But does this prove that a particular man at a particular 
 juncture of his career enjoyed the moral freedom to deter- 
 mine his conduct? This we cannot know. It is as though 
 one were to say that a horse when unrestrained may go 
 forward or backward; he has the same control, the same 
 possibility of either movement. If he goes forward, does 
 it follow that he has chosen one alternative rather than the
 
 66 INDIVIDUALIZATION OF PUNISHMENT [ 24 
 
 other? Does it follow that, as a free moral agent, he has 
 made a free choice? The situation may really have been 
 like that of Buridan's ass placed between two bundles of 
 hay. The creature exhibits little if any hesitation. Hunger 
 decides; and a physiological instinct determines the re- 
 action. He begins with either of the two bundles that 
 happens to be the more convenient, or, it may be, with the 
 one that he happened to see when a strong impulse urged 
 him to feed; and all without a moment's hesitation. The 
 human situation is commonly solved in like manner. 
 
 There arises the ready and cogent objection that the ani- 
 mal has no consciousness of his acts, and accordingly that 
 there can be no question of freedom when the idea of choice 
 does not enter the mind. Freedom involves the power to 
 anticipate one course or another, and the power to repre- 
 sent possible alternatives; but in particular it involves the 
 consciousness of one's freedom. Now this is precisely the 
 human prerogative; man foresees, mentally reflects upon 
 his intention, has the consciousness of freedom, of the power 
 to choose one course or another. The consciousness of self- 
 determination involves the power to act, as is preferred, 
 in one direction or in its opposite. 1 Moreover, if in accord 
 with the determinist position and the results of physiological 
 experiment, the mechanical impulse to action depends upon 
 the cerebral intensity of the thought, then the presence of 
 the ability to realize the future, to have in mind appropriate 
 images and ideas, is adequate to establish the presence of 
 freedom. It becomes the power to distinguish between 
 right and wrong. 2 
 
 1 Fonsegrive, cited above, p. 93, seq., p. 113. 
 
 1 The equivalence of the two was assumed by the code of 1810. It ap- 
 pears, or is suggested so long ago as in the "Sententise" of Peter Lombard^ 
 and in the "Commentaries" of Thomas Aquinas. See also above, p. 40, 
 note 2.
 
 24] THE NEO-CLASSIC SCHOOL 67 
 
 In this argument there is at once a subtle confusion to 
 disentangle and a distinction to be drawn. Is freedom as 
 realized an intellectual process? If so, then the intensity 
 of the thought determines the freedom. This would be 
 a deterministic position, provided that it be established 
 that the will is effective in the realm of ideas rather than 
 in that of action. But it is just this that may be questioned. 
 May it not be, on the contrary (approaching the thesis 
 of M. Fouillee in his "Determinism" and in his "Insistent 
 Ideas"), that the knowledge of our freedom makes us 
 masters of our will, and free agents? But this, in turn, is 
 but one aspect of a psychological determinism in that it 
 makes freedom at once the cause and the effect of the idea 
 of freedom. With this reservation we turn to the state- 
 ment that freedom of the will consists in the idea of being 
 free ; it is man's consciousness of his own freedom. To 
 have the consciousness of being a free agent is all that is 
 necessary to realize one's freedom. This ideal aspect of 
 freedom acts upon the will as an independent motive, and 
 is summarized in the expression: It is my will because I 
 wish it so. The thought of setting the will to act itself de- 
 termines the will; and, likewise, the consciousness of pos- 
 sessing freedom exempts us from dependence upon merely 
 instinctive impulses or physiological forces. 
 
 Approaching the question from this direction, and ad- 
 mitting the philosophical validity thereof and admitting 
 likewise that the consciousness which we have of our own 
 freedom is an effective force which in a measure makes 
 real the freedom itself, does it follow, when the question 
 is shifted to the practical field of penal law which alone 
 is here to be considered that every one in relation to a 
 given act has experienced such adequate consciousness of 
 his freedom?
 
 68 INDIVIDUALIZATION OF PUNISHMENT [ 25 
 
 25. Empirical Conditions of Freedom : Premeditation 
 
 That every man in a general and abstract way feels him- 
 self free is a simple and undeniable fact of consciousness; 
 but it is far from clear that in the presence of a particular 
 situation this consciousness is aroused strongly and clearly 
 enough and with sufficient vividness to induce reflection and 
 hesitation. There are certain spontaneous and instinctive situ- 
 ations, as well as acts of impulse and habits that take place 
 automatically; there are manifestations of the intimate self 
 that reach expression not only without arousing a conscious- 
 ness of the freedom to act otherwise but even without the 
 thought of a different action entering at all. Shall we speak 
 of freedom when the idea of choice has not been present, when 
 of two possible issues only one is inherent in our nature, and, 
 indeed, is imposed upon it, without the possibility of its 
 opposite coming to mind? And is not this the case with all 
 excitable, intense, and sympathetic natures, commonly de- 
 scribed as emotional but more properly called passionate? 
 
 The question for the moment does not concern those 
 inner conflicts and hesitations that are weighed one against 
 the other; such belong to the state of doubt. There are 
 persons so spontaneous in action, so impulsive in feeling, 
 with ready convictions on all subjects, that they do not 
 experience such hesitations. Indeed, in regard to acts per- 
 formed instinctively, in which there is not the least sug- 
 gestion of a possibility of acting otherwise, this applies to 
 all of us. Let us consider the hypothesis, which is both 
 probable and often realized, that there are actions and 
 this refers to other than spontaneous and instinctive acts 
 that we have duly willed, which are alone present to con- 
 sciousness, and in which the state of mind does not entertain 
 the contrary issue. This then may be said to have been the
 
 25] THE NEO-CLASSIC SCHOOL 69 
 
 serious mistake of our classic penal law, the acceptance 
 of a premeditated and deliberate act as a distinctively free 
 act, for thus, as affecting certain crimes such as murder, 
 premeditation became in its penal aspect an aggravating 
 circumstance of the crime. Premeditation implied that the 
 agent had prepared, considered, reflected, devised, and con- 
 firmed the decision of the will. Take the case of a man 
 possessed by a fixed idea, who is moving toward the type 
 of crime which we call crimes of passion. The more 
 irresistible, blind, absorbing and all-pervading the obsession 
 becomes, the more the will becomes cold, calculating, pa- 
 tient, and contemplative. There is nothing more calm, 
 more premeditated, and more deliberate than the obsession 
 of suicide or than the passionate obsession of certain mur- 
 derers, but at the same time there is nothing less free, if 
 we understand by freedom the ability to withdraw from 
 the fixed idea, the consciousness of control and of the obli- 
 gation to act otherwise. Premeditation is a sign neither 
 of freedom nor of moral responsibility; it is more commonly 
 a sign of obsession, or of innate perversion, and therefore 
 a sign of temperamental taint. It may also be a symptom 
 of the formidability (la temibilita in the Italian phrase) of the 
 individual. Possibly the penal code of 1810 anticipated the 
 applications of the Italian school; if so, it may be credited 
 with having done so unintentionally. It is not proper to 
 conclude that premeditation is a fair criterion of responsibility 
 as based upon the presence of freedom. In speaking of 
 actions that do not involve the conscious presence of the idea 
 of freedom we should have in mind premeditated, possibly 
 even enforced acts, and not mainly spontaneous actions. 1 
 
 1 On the question of premeditation see the excellent work of Alimena, 
 "La Premeditazione," especially the second part relating to the psychology 
 of premeditation, p. 79 and p. 116, seq. Also consult the thesis of M. Le- 
 grand, "De la Premeditation (Paris, 1898), p. 35, seq.
 
 70 INDIVIDUALIZATION OF PUNISHMENT [ 26 
 
 26. Potential and Actual Freedom : Applications 
 
 The conclusion that emerges from this discussion that 
 freedom is a potential quality of our nature is a con- 
 viction capable of logical defense. The illusion, or better, 
 the indefensible fiction, consists in supposing that such 
 freedom is realized in each actual situation as a profound 
 and intimate motive force that serves as an intermediary 
 between the will and the external world. It is undeniable, 
 even for the most normal and well-regulated mind, that in 
 regard to many actions, including crimes, this potential 
 freedom (which is not questioned) does not exist as a real 
 and available motive, acting independently and contributing 
 the decisive impulse. This of itself demonstrates that the 
 fundamental assumption of our classic penal law that every 
 willed act is a free act, or, at least, an act committed in a 
 state of freedom, is false, artificial, and fictitious. 
 
 Turning to the second assumption that serves as the 
 foundation of the classic theory, we may examine the 
 position that, inasmuch as freedom is a spontaneous force, 
 unaffected by extraneous influences, every act involves 
 the same measure of freedom. Under this view there is 
 no question of greater or less one is either free or not. 
 The traditional conception of the freedom of the will inevi- 
 tably reaches the surprising result that there is no partial 
 freedom, no state of semi-liberty. 
 
 Considering freedom as something intelligible, and neg- 
 lecting the metaphysical obscurity attaching to the con- 
 cept, it can be nothing else than the inherent ability to 
 resist. As applied to a criminal act, freedom is the power 
 to resist the evil impulse; and this, in turn, is the strength 
 of character that may be appealed to, to oppose the inherent 
 instincts and passions. If this is true, how can it be
 
 26] THE NEO-CLASSIC SCHOOL 71 
 
 maintained that the power to resist evil remains the same 
 for every one, or for each individual at all times and for 
 all situations? To put the question is to answer it. It is 
 a fact of consciousness, a common experience, that an act, 
 above the purely automatic and instinctive stage, is often 
 the issue of an apparent hesitation, of a choice implying 
 antagonistic influences and at times fierce conflicts. And 
 these occur precisely and particularly where the conscious- 
 ness of freedom, and accordingly the sense of duty, is 
 actively present. There come to consciousness the force of 
 impulses and the push of instincts, and opposed thereto, 
 rational considerations. The conflict grows, and the im- 
 pulses succeed in obscuring the outlook, in suppressing the 
 sense of duty and the sense of freedom; and in the end they 
 overcome the surviving power of resistance, dissipate it 
 into a vague and inert idea, and deprive it of value as a 
 counteracting motive. 
 
 This cumulative power of the will depends upon many 
 familiar conditions. It depends upon the state of health or 
 the presence of a pathological factor, quite apart from the 
 question of true mental disorder. To use the accredited 
 expression, there may be a real disorder of the will involving 
 an almost physical incapacity to will. Such aboulia is a 
 common sign of neurasthenia. The status of the will de- 
 pends upon habit, in short, upon character; and this varies 
 for each individual and for each of the several possible as- 
 pects of his personality. It is unnecessary to enlarge upon 
 what is established by common experience. 
 
 The revisers of the penal code took account of this rela- 
 tion by introducing punishments variable between fixed 
 limits, and thus adjusting the punishment to the degree of 
 freedom as well as to the objective status of the act. For 
 like reason they attached importance to premeditation;
 
 72 INDIVIDUALIZATION OF PUNISHMENT [ 26 
 
 and in so doing, as above noted, they committed a serious 
 error and followed a false clue. To take premeditation as a 
 basis for the individualization of punishment implies a belief 
 that the measure and degree of intent embodied in an act 
 corresponds to the degree of freedom in the act as realized. 
 This is far from being the case. It really corresponds to the 
 degree of determination that induced the act. It becomes 
 an indication that the act sprang from a powerful resolve 
 that had completely overpowered the agent. The deeper, 
 the more compelling, the more absorbing the resolution, the 
 less it gives way to other influences, the less it yields to ad- 
 vances from without, to any external impressions from the 
 environment. As it proceeds, it grows by what it feeds upon 
 and becomes ever more compelling. It is, or presently be- 
 comes, the tyranny of a fixed idea, and constitutes the very 
 reverse of a state of freedom. Nine times out of ten the 
 more an act is premeditated the less will it be free. If the 
 degree of punishment is to be based upon the measure of 
 freedom, then premeditation is the worst of criteria. But 
 whether or not it is a fitting criterion, it is significant 
 of a certain tendency. It proves that the supposition of 
 a like measure of freedom for every identical act, and 
 consequently the supposition of a like responsibility, is 
 quite untenable. 
 
 The view that seems likely to prevail substitutes a reality 
 for a fiction; and inasmuch as it must deal with responsi- 
 bility and hold to some belief in freedom, it builds upon a 
 true responsibility in place of an assumed responsibility. It 
 aims to substitute the realities of experience for purely 
 judicial abstractions; to give fact a place above law, the 
 spirit of observation a place above the legal spirit. We may 
 now proceed to the results developed from these commendable 
 purposes.
 
 27] THE NEO-CLASSIC SCHOOL 73 
 
 27. The Social Regulation of Conduct 
 
 But before presenting them it may be well to set in relief 
 the contrast of the two systems. The penal code of 1810 
 may be said to have been a legal construction in the extreme 
 sense of the word; it was the work of jurists. The chief 
 characteristic of legal constructions is the prominence of 
 straight lines, of abstract regulations, and, consequently, of 
 fictions and formulae to which living realities are forcibly 
 made to conform. 
 
 The law is primarily a social discipline and the foundation 
 of the social order. Now social regulation requires the for- 
 mulation of certain general limitations to which individuals 
 must submit. From this assumption it necessarily follows 
 that every regulation made for a group of similar cases must 
 be strictly applicable to each of the cases in detail. This, 
 however, is but an assumption, though a necessary one to 
 introduce some measure of order and uniformity in the con- 
 trol of individual freedom. It is an assumption of the same 
 kind as obtains in politics and in constitutional matters; as- 
 the right to liberty, the right to equality, and such other 
 rights as the principles of written constitutions provide. 
 These can be applied to particular cases only by way of legal 
 fictions; which means that commonly the application is 
 most imperfect. The classic penal law, following the spirit 
 of social regulation, was a legal construction based wholly 
 upon assumptions and fictions. 
 
 It is, however, the case that penal law is of all social sciences 
 the least amenable to a system of fictions and assumptions. 
 Any such system opposes the living realities which protest 
 against the rigidity of formulae and against their imperfect 
 adjustability to the facts; or rather, against the difficulty 
 of shaping the formulae to the requirements of individual
 
 74 INDIVIDUALIZATION OF PUNISHMENT [27 
 
 justice. The same is doubtless more or less true of other 
 departments of the law. Yet elsewhere the system of legal 
 assumption readily yields in special cases to slight personal 
 concessions, which it accepts in the interests of order and 
 the social welfare. It is the cost of the social protection, 
 indeed, of efficient regulation; and such regulation is accepted 
 as a necessary limitation to which all must submit. 
 
 Penology no longer concerns itself with enforcing payment 
 for social protection. The question as it affects the individ- 
 ual is very different and vital, that of determining whether 
 he shall continue to participate in the social life; whether he 
 shall remain in the class of active free citizens, enjoying 
 social rights under the protection of the State; or whether 
 he shall be permanently or temporarily debarred from social 
 privilege. The issue concerns not an incidental disability 
 justified by the interests of society, but the very right to a 
 share in the social life. The issue appears as the choice of 
 one of three possibilities, singly or in combination. There 
 may be a deprivation of life, of liberty, of honor. Such a 
 serious deprivation cannot be demanded in obedience to a 
 mere assumption, cannot be imposed by virtue of a legal 
 fiction. If such punishment is based upon the conception 
 of responsibility, it cannot be applied upon a mere assump- 
 tion of responsibility; there must be a concrete and definite 
 proof thereof. Accordingly, the personal issues involved in 
 a criminal case differ wholly from the forfeitures or sacrifices 
 at stake in other types of legal issues. 
 
 The system of assumptions and fictions should long ago 
 have been recognized as untenable. It is time to replace it 
 by a concrete examination of the facts of the case. The 
 penal code of 1810 was based upon a system of assumed 
 responsibility. The criminal practice that is to be substi- 
 tuted for this legal theory looks to a system of true re-
 
 28] THE NEO-CLASSIC SCHOOL 75 
 
 sponsibility, a responsibility that shall be concretely and 
 individually applied, with due reference to the personality of 
 the offender and the details of the case. It is to replace a 
 general fictitious and abstract responsibility, assumed for 
 one and all by the warrant of the same legal formula. The 
 contrast between the two systems is pronounced : in the writ- 
 ten law, responsibility is assumed and fictitious; in the law 
 as applied, it is real and concrete. 
 
 28. Responsibility proportioned to the Degree of Freedom ; 
 Irresponsibility and its Establishment 
 
 Let us now turn to the formulated conclusions. They ap- 
 peared as a first attempt towards the individualization of 
 punishment based upon the degree of responsibility. The 
 responsibility, in turn, was based upon the conception of 
 freedom; justice required that the punishment _should be 
 proportioned to the degree of freedom; and, finally, justice 
 required that the punishment should be entirely omitted 
 where there was no freedom of action. Such is the logical 
 and just position of the neo-classic school. The first appli- 
 cation thereof was made by the jury. The latter naturally 
 would not submit to the subtleties of legal assumptions. 
 They might be informed that every man accused of the same 
 crime had a like responsibility and consequently should be 
 given a like punishment. But they were brought face to 
 face with the defendant as he disclosed the details of his life, 
 the impulses to which he was subject, the delusions that 
 distorted his outlook; and the jury recognized that, quite 
 apart from the question of insanity, there may be degrees 
 of freedom, and consequently degrees of responsibility. But 
 having no power to grade the responsibility, since the law 
 made no such provision, they simply found for acquittal. 
 In 1824 with some limitations, and in 1832 in a more gen-
 
 76 INDIVIDUALIZATION OF PUNISHMENT [28 
 
 eral provision, there was introduced a concession to this 
 tendency of juries to recognize extenuating circumstances. 
 The term indicates the purpose in mind. It was not to ad- 
 just the punishment to the degree of perversion of the indi- 
 vidual, but to the degree of responsibility; that is, to the 
 precise moral status of the act in question. It was an in- 
 dividualization based upon and measured by responsibility. 
 
 The penal code considered in the first instance the case of 
 minors. It made the distinction as an individual one and 
 not as the result of a presumption. The exemption of minors 
 was not in deference to a period of presumed irresponsibility 
 in regard to crime, but to a legal incapacity to commit crime, 
 as the phrase goes. Any minor of whatever age, even a young 
 child, may be liable to criminal prosecution. But the ques- 
 tion of the presence of normal discretion must be raised, and 
 thereby the question of responsibility becomes an individual 
 one. Modern practice proposes to introduce and apply an 
 analogous procedure in regard to adults. 
 
 In the introduction of extenuating circumstances the law 
 entered upon a new and approved path. Recent legislation 
 endorses the position of the neo-classic school. It is not 
 merely that modern codes assign a large place to extenuating 
 circumstances, but that recent tendencies as exhibited in 
 foreign criminal legislation of a later period than the French 
 have introduced conceptions ignored by the older penal 
 codes. 
 
 The first of the important innovations affects the status of 
 responsibility. The French penal code assumed that in 
 every adult man of sound mind and normal condition re- 
 sponsibility was the rule. It was assumed to be present hi 
 every voluntary act. To this general assumption the only 
 exception was made in behalf of a condition of mental dis- 
 order, clearly defined, incompatible with normality and
 
 28] THE NEO-CLASSIC SCHOOL 77 
 
 leaving no doubt of the subject's irresponsibility. Accord- 
 ingly the French penal code admitted no irresponsibility 
 apart from true dementia; and likewise, although this is not 
 definitely stated, apart from such pathological conditions as 
 idiocy or similar mental defects. So long as insanity was 
 not present, the defendant could not plead irresponsibility. 
 As a point of law the plea was not admitted that the de- 
 fendant, while in possession of his intellectual faculties, had 
 not the exercise of his free will, or that he did not possess 
 sufficient freedom to resist the crime. The assumption of 
 responsibility was suspended only in the presence of a proof 
 of a pathological condition of irresponsibility. One assump- 
 tion was substituted for another; and the second, like the 
 first, was determined by a pathological test. The point at 
 issue was not to be determined by a psychological opinion 
 but by expert medical testimony; it was a question of the 
 evidence of a pathological mental defect or a state of clearly 
 marked insanity medically attested. Given such a condi- 
 dition, the assumption of irresponsibility necessarily fol- 
 lowed. Inasmuch as a state of abnormality had replaced the 
 normal condition, the one assumption had to give way to 
 the other. From these clear, definite, simple, and direct 
 premises the following conclusions result: every man not in- 
 sane is responsible; to establish irresponsibility insanity must 
 be proven; there is no middle ground, no intermediate condi- 
 tion. For the French penal code responsibility and irre- 
 sponsibility are alike states of mind or, if one may say so, 
 potential states of mind. When the pathological condition 
 is once established it determines the psychological status. 
 There is no need of determining it in its bearing upon every 
 special act. 
 
 The neo-classic school and the legislation associated 
 therewith abandoned any such simple and legally exact
 
 78 INDIVIDUALIZATION OF PUNISHMENT [ 28 
 
 system. They made irresponsibility dependent not alone on 
 the evidence of a state of dementia but upon the evidence of 
 a lack of freedom. The proof of an antecedent pathological 
 state is in itself not sufficient. It is but the preliminary re- 
 quirement to warrant an examination and a psychological 
 inquiry. 1 Some of the resulting legislative proposals logi- 
 cally, if radically, contended for a psychological criterion 
 alone, requiring unconditionally the evidence of a lack of 
 moral freedom. The consequences of this position were 
 disastrous. It permitted the accused in all cases to plead 
 irresponsibility. There were indeed few cases of crime in 
 which the defendant could not allege a moment of distrac- 
 tion depriving him of true freedom of action. To remedy 
 this defect a twofold or composite criterion was introduced; 
 the further evidence of a pathological state was required to 
 permit the plea of the absence of moral freedom. But it is 
 self-evident that the pathological criterion is not considered 
 sufficient in itself to establish irresponsibility, unless, as in 
 true dementia, the case unmistakably involves a condition 
 that eliminates responsibility. But would a simple brain 
 disorder, provided that it was present before and not merely 
 during the crime, be sufficient to establish irresponsibility? 
 Would it be easy to decide? Obviously the presence to any 
 degree of a pathological disturbance however slight, and 
 yet more obviously, of any neurosis not to say nervousness, 
 should warrant the privilege of an investigation and the 
 possibility of establishing the absence of freedom. But in 
 actual practice this composite principle, despite the assur- 
 ances which it seems to offer, amounts to a dependence upon 
 
 1 See the scholarly work of Gretener on the Preliminary Draft for the 
 Swiss Penal Code; Gretener, "Die Zurechnungsfahigkeit als Gesetzgebungs- 
 frage" (Berlin, 1897), 2, p. 17, aeq. As germane to Gretener's treatment, 
 and to offset the partisanship which it expresses, it will be well to read the 
 review published by Zurcher in the Revue penole suiase (1898), p. 51.
 
 29] THE NEC-CLASSIC SCHOOL 79 
 
 a psychological proof with the abuses and dangers attaching 
 thereto. The physician is really appealed to for an opinion 
 not upon the existence of a mental disorder, which is his 
 proper field, but upon a psychological question, the com- 
 patibility of the abnormal condition with the presence or 
 the degree of legal responsibility. Or again, take the com- 
 mon case in which the physician renders an opinion upon 
 the question of responsibility. The judge invested with 
 superior authority, may in turn review the opinion of the 
 physician. He may thus revise and determine upon other 
 considerations what is fundamentally a psychological issue, 
 depending, however, upon a state of abnormality. Hence 
 there results general confusion of their respective functions. 
 
 29. The Basis of Mitigation and of Exemption from 
 Punishment 
 
 But what other procedure is available? The question 
 may be consistently answered. If responsibility is based 
 upon freedom, it should necessarily end where freedom of 
 the will ends. Every defendant should have the right to 
 establish that the deed of which he is accused was not a free 
 act. Unquestionably the absence of free will may be proven 
 apart from the existence of true insanity. Hence a con- 
 cession allowed by many modern legislatures is the admis- 
 sion that the establishment of irresponsibility is an evidence 
 of a lack of free will, and that such evidence is possible apart 
 from cases of true insanity. In dealing with this problem 
 modern legislation was called upon to take a position upon 
 the metaphysical question of free will. 
 
 On this issue the French penal code reaches a remarkable 
 conclusion. It assumes free will but does not mention it; 
 it assumes that every adult is responsible for his actions. 
 To suspend this assumption requires the evidence of de-
 
 80 INDIVTOUALIZATION OF PUNISHMENT [29 
 
 mentia or of a similar pathological condition. The word 
 " freedom " is not mentioned. The evidence to be furnished 
 relates to matters of medical diagnosis that involve no philo- 
 sophical or religious convictions. So far the position is clear. 
 The medico-legal expert has to pronounce solely upon the 
 presence or absence of insanity. This lies within his com- 
 petence. He is not called upon to pronounce upon the free- 
 dom of the will; and if he does not believe in free will, no 
 sacrifice of his conviction is involved. 
 
 The question of moral freedom is raised in the German 
 penal code, hi the laws of the majority of the Swiss cantons, 
 in the draft of the Austrian penal code, and in the Italian 
 penal code. To prove irresponsibility requires the estab- 
 lishment of the absence of freedom. The evidence bears 
 directly upon a psychological question; and the medico- 
 legal expert, summoned to pronounce upon the mental state 
 of the defendant, finds himself, in fact, called upon to solve 
 a question in moral psychology and to decide a philosophical 
 issue. If he does not believe in the freedom of the will, may 
 he not be tempted to decide against responsibility? Follow- 
 ing upon the opinion of the physician, the same problem is 
 put to the judge or to the jury; namely, the general problem 
 of the existence of free will and of its special application to 
 the case hi question. Under these circumstances the in- 
 consistency of the verdicts of juries is not surprising. 
 
 However, such is the result of the new position. The legal 
 evidence no longer turns upon a medical diagnosis, a 
 relatively simple matter to be established by medical evi- 
 dence; but it turns upon a question of moral psychology. 
 It presupposes a metaphysical problem, the question of 
 determining whether the particular act was executed in a 
 condition of moral freedom. The second result of the neo- 
 classic doctrine is the legislative sanction of individualization
 
 29] THE NEO-CLASSIC SCHOOL 81 
 
 based upon the degree of responsibility. This is termed the 
 theory of partial or limited responsibility. In view of the 
 treatment of the problem in a later connection, it is sufficient 
 to give a brief summary thereof. 1 
 
 If there are degrees of responsibility it follows that the 
 punishment should vary with the degrees of this subjective 
 factor. If the power to resist evil fluctuates with the psy- 
 chological condition of the individual, and particularly with 
 that of the brain and the general health, the punishment 
 should reflect the precise status of this subjective condition; 
 the measure of punishment should be regulated according 
 to the degree of responsibility. The principle is clear. The 
 French system relies upon the very considerable elasticity 
 of practice which the recognition of extenuating circum- 
 stances permits. A more developed view, more considerate 
 of fine distinctions, points out that the extenuating circum- 
 stances cannot be anticipated in the law, and must be left 
 entirely to the discretion of the judge. They refer directly 
 to the incidental circumstances of the crime; to whatever con- 
 tributed to the issue, the nature of the act, its motive, and 
 the occasion which provoked it and possibly justified it. All 
 these circumstances are variable and cannot be anticipated; 
 they have no reference to previously existing or acquired 
 traits. 
 
 At this point a further distinction enters. There are states 
 of the mind or brain or health that are not accidents of con- 
 dition and should not be confused with them. Indeed, they 
 are permanent conditions and in themselves restrict and 
 lower the energy of the will and thereby its power to resist 
 evil, without completely suppressing it. Such are the vari- 
 
 1 See the study of M. Sumien, "Essai sur la thSorie de la responsabilite 
 attnuee de certains criminels," in the Revue critique de legislation et de juris- 
 prudence, 1897, p. 451, seq.
 
 82 INDIVIDUALIZATION OF PUNISHMENT [ 29 
 
 ous forms of neurasthenia, degenerative taint, or cerebral 
 excitement bordering upon monomania in the medical sense 
 of the word. All such conditions lower, in some measure, 
 the capacity to act as a free and responsible agent. They 
 weaken, in some measure, the legal assumption of responsi- 
 bility. Accordingly the law can and should recognize them 
 as grounds for a legal reduction of punishment. Just as ir- 
 responsibility is a legal ground for exemption from punish- 
 ment, so should semi-responsibility be a legal ground for 
 concession; it should not be merged with the indefinite group 
 of extenuating circumstances. It is a special condition which 
 the law can and should recognize. It should not be con- 
 fused with the objective extenuating circumstances; indeed, 
 it may occur along with them. The abnormal condition 
 may so combine with the circumstances of the crime as to 
 become a partial provocation, which in itself reduces the 
 objective gravity of the offense. As a part of the variable 
 conditions it should be considered along with the extenuating 
 circumstances. But before applying this ground of exten- 
 uation there should in justice be considered a more funda- 
 mental factor; namely, the condition of the will, the state of 
 the defendant's mind. He may in that case present two 
 cumulative grounds for indulgence; consequently, he may 
 be entitled to two degrees of extenuation, the one superim- 
 posed upon the other. To admit but one, as is the rule in 
 France, is decidedly unjust. 
 
 Accordingly, in recent legislations these different types of 
 partial responsibility are recognized as grounds of mitiga- 
 tion by the law, apart from the extenuating circumstances. 
 In practice, as already noted, this amounts to conceding 
 to the jury the right to apply two successive grounds for 
 the mitigation of the punishment: the one by reason of the 
 partial responsibility of the criminal, and the other, if the
 
 30] THE NEO-CLASSIC SCHOOL 83 
 
 jury so finds, by reason of the extenuating circumstances. 
 Thus the punishment might be reduced to nothing; and the 
 question arises whether it would not be better to omit the 
 punishment in the first place. A defect in our punitive sys- 
 tem is the abuse of short sentences. Punishment should be 
 long enough to act as a reformative measure; otherwise the 
 complete remission of punishment is preferable. Short sen- 
 tences are long enough to degrade and contaminate, but 
 not long enough to offset the moral evil which the prison 
 breeds. The modern view regards the criminal as even 
 more of a menace than the man suffering from disease or 
 from tendencies to insanity. It would appear that the 
 more dangerous he is, the more promptly is he restored to 
 society. 1 And yet this result seems to follow from an in- 
 dividualization based upon responsibility. 
 
 30. The Individnalization thus resulting ; Practical and 
 Theoretical Objections 
 
 The consequences of the new conception of responsibility 
 are clear. If you start from the concrete question of the 
 freedom of the will and determine to what degree a criminal 
 act has been committed in full freedom, you necessarily 
 reach two conclusions: the first, to exempt from punishment 
 when it is established pathologically or psychologically that 
 freedom of the will was absent; and the second, to reduce 
 and lower the punishment when it is established that the 
 defendant exercised only a partial freedom. Though these 
 positions are ignored by the French penal code they have 
 been more or less completely recognized in modern legis- 
 
 1 See the report of Professor D. von Speyr at the Swiss Congress of Medical 
 Alienists at Coire, in 1893: "Wie ist die Zurechnungsfahigkeit in einem 
 schweizerischen Strafgesetzbuche zu bestimmen?" published in the Revue 
 penale suisse, 1894, p. 183, seq.; and also Liszt in the Zeitsch.f. d. ges. Str. W. t 
 Vol. XVII, p. 77, seq.
 
 84 INDIVIDUALIZATION OF PUNISHMENT [ 30 
 
 lation. Such recognition has been generally regarded as an 
 advance in consistency as well as in justice. 
 
 The new system may very properly be termed the neo- 
 classic system. It appears at once as a result and as an 
 application of the earlier classic theories, and again as a 
 reaction against the unyielding rigidity of the classic view. 
 It appears as a natural logical development, because, if re- 
 sponsibility is based upon freedom, it seems absolutely just 
 to gauge the responsibility for an action by the degree of 
 freedom exercised by the one who committed it. But this 
 is a violent reaction from the original severity of the penal 
 code; for there it was assumed that freedom remained ever 
 the same, and required approximately the same punish- 
 ment for all who committed the same crime. It is against 
 this fiction that the neo-classic school protested; and it 
 should be given the credit for this first attempt scientifically 
 to apply the subjective position to criminology. The^ neo- 
 classic position is avowedly subjective, advocating the con- 
 sideration of the individual, taking account of the state of 
 the will at the moment of the crime, and estimating the 
 degree of the culpability of the offender. It marks the re- 
 cent introduction of the subjective point of view in penology. 
 To find an equally liberal humanitarian justice and one 
 equally solicitous of moral values, we would have to go back 
 to the ecclesiastical law. We are withdrawing from a justice 
 of conformity to the letter of the law to return to a justice 
 of discipline, less controlled by legal formulae and more 
 considerate of the individual. The crime no longer stands 
 alone; the criminal becomes the chief consideration. 
 
 However, this first attempt in subjective criminology will 
 be found quite inadequate. It is open to two serious 
 criticisms in that it involves a practical difficulty and a 
 scientific error.
 
 30] THE NEO-CLASSIC SCHOOL 85 
 
 The practical difficulty is obvious; l it is the absence of a 
 criterion to determine the degree of freedom. Every one, 
 even the extreme upholders of the freedom of the will in its 
 traditional form, recognizes that freedom is not the same as the 
 will. An act of volition is different from an act of free election. 
 The will is a mechanical expression of the moral nature shared 
 by all who reason and act; it exists in the insane as in the rest 
 of mankind. The insane. man exercises a will, and a reasonable 
 one. He desires and he reasons. What he lacks is fundamental; 
 he objectifies his ideas and builds his reasonings and desires 
 upon a foundation devoid of reality. But apart from this his 
 mental mechanism functions as in any one else. His acts of will 
 are activities similar to those carried out by others; and yet he 
 is not regarded as free. Freedom is not the same as will. The 
 mistake consists in believing that it is possible to determine 
 and measure the will. But if freedom is to be distinguished 
 from will, how shall we find a general standard of freedom? 
 
 Freedom is not open to scientific demonstration and proof. 
 How then shall it be graded, even approximately? We may 
 possibly measure the degree of intelligence and the strength 
 of the will; but this is not freedom. Science and observation 
 discover only causes and effects; but the freedom of the will 
 consists in breaking away from the principle of causality. 
 It is a force produced apart from the field of experience. 
 This does not imply that it has no existence. The findings 
 and methods of science set forth that science cannot de- 
 termine, or discover, or observe freedom; it escapes every 
 device of scientific analysis. Accordingly, the jury in its 
 practical function of gauging this question of freedom and 
 responsibility has no other resource than to follow the ex- 
 ample 7 of the law; it holds to the criterion of premeditation, 
 
 1 See the very interesting chapter in "La question de la liberte et la con- 
 duite humaine," by M. Paul Moriaud (Paris, F. Alcan, 1897), p. 185, seq.
 
 86 INDIVIDUALIZATION OF PUNISHMENT [30 
 
 and quite generally confuses premeditation with freedom. 
 Far from being the same, the two are commonly opposed. 
 
 Yet the argument likely to carry conviction is this : 1 if 
 freedom is the power to resist evil and the ability to act by 
 virtue of such resistive power, it follows that the more a man 
 is perverted and corrupt the less is he free and accountable. 
 If the degree of freedom is to be measured by the power to 
 resist evil, then the criterion can be applied only to the 
 crimes of first offenders, for they alone show the necessary 
 hesitations and conflicts. In such cases it is evident that the 
 agent could really have resisted. Thus the man convicted 
 for the first time becomes the really responsible criminal. 
 If punishment is to be gauged by the degree of freedom, he 
 is the one to be punished mercilessly; for commonly, except 
 under stress of passion, his crime will appear as a free act. 
 
 Is it to be supposed, when the hardened and habitual 
 criminal is bent upon theft or even murder, that any 
 thought of the moral significance of his crime enters his 
 mind? The power to resist implies the thought of re- 
 sistance. But the thought of such resistance is not even 
 present. It has been deadened by habit and lost in the 
 growing degeneracy of the man. The more perverted and 
 hardened a man becomes, the less is any freedom of action 
 perceptible in what he does; and hence he becomes less 
 and less free and accountable. Accordingly he should be 
 exempt from punishment, if the test of real and concrete 
 freedom, the test of the actual proof of a free will, is to be 
 accepted. It is in his behalf that parole, according to the 
 law of Berenger, was provided. If, however, this reasoning 
 offends common-sense, one may withdraw from the position 
 that punishment should be inflicted because of a respon- 
 
 1 Wahlberg, "Grundztlge der Strafrechtlichen Zurechnungslehre " (in the 
 Gesammeltc kleinere Schriften, Vol. I, p. 1, especially pp. 88, 85).
 
 31] THE NEO-CLASSIC SCHOOL 87 
 
 sible state, and uphold punishment for the reason of the 
 criminal's menace to society. Under this view it is not a 
 punishment that is applied but a precautionary measure. 
 This brings one back to Liszt's view that such criminals 
 are in his sense no longer responsible. As a rigid deter- 
 minist Liszt regards the conception of responsibility as 
 distinct from the conception of moral freedom; and he 
 is thus led to deny that such incorrigible offenders exercise 
 responsibility, and to ask in their behalf precautionary 
 measures which are not in accord with the classic conception 
 of punishment. Yet this is the modern position, and ap- 
 pears as well in Stooss, who, however, does not abandon 
 the classic conception of responsibility. He finds it ob- 
 jectionable to speak of punishment for those who have 
 become insensitive to punishment. He regards such men 
 as he regards minors, though in a very different sense, as 
 exempt from punishment. 1 Responsibility is no longer 
 identified with a liability to a criminal charge. But this 
 conclusion is based upon the modern conception of indi- 
 vidualization considered in terms other than those of re- 
 sponsibility. This solution the neo-classic school cannot 
 consistently accept in view of its recognition of responsi- 
 bility as universally present, and of its acceptance as the 
 sole factor in the determination of punishment. It should 
 thus agree with Liszt that professional criminals are ir- 
 responsible, but should add that therefore society has no 
 occasion to take vengeance on them. 
 
 31. Remote and Immediate Responsibility 
 If we may still speak of freedom of the will and responsi- 
 bility in connection with such debased individuals, it is not 
 
 1 See the lecture of Stooss at the opening of his course on penal law at the 
 University of Vienna: "Der Geist der modernen Strafgesetzgebung." in the 
 Revue penale suisse, 1896, p. 269, seq.
 
 88 INDIVIDUALIZATION OF PUNISHMENT [31 
 
 at the moment of committing the crime that they apply; 
 that is the very moment when there is no freedom. One 
 must go far into the past to find the precise moment, the 
 very instant perhaps, when the sense of wrong-doing was 
 present to their conscience and when they passed beyond 
 its influence, crossing for all time the fatal boundary and 
 entering upon the path of what is now called chronic crim- 
 inality. At certain solemn, possibly infrequent moments of 
 our existence, we certainly have the consciousness of com- 
 mitting ourselves and our moral future, a consciousness of 
 a critical period, at which it lies with us to set our course 
 in a definite direction. We are conscious of a freely acting 
 power, though doubtless the decision is reached through 
 some motive which itself creates the decisive resolve, or 
 at least gives it the headway that determines its dominance 
 and so impresses the cerebral equilibrium as to result in the 
 action taken. Possibly many criminals have had such 
 moments. 1 But how shall it be possible always to find 
 such a precise moment in the turn of affairs, and, if found, 
 how shall it serve to determine the proper measure of pun- 
 ishment? The punishment warranted by law, which alone 
 the judge has the right to impose, is that which the law 
 provides for the crime, and which, accordingly, relates only 
 to the crime committed. It has no relation whatever to 
 that remote situation when the irrevocable decision was 
 taken, of which the present crime is the distant issue. The 
 punishment, which the judge can and must impose, refers 
 to a crime for which there was no freedom of action; and 
 on the other hand, the action which seems to be free has 
 probably no criminal status and carries with it no punish- 
 
 1 George Eliot presents an admirable psychological analysis of the truly 
 decisive effects of this first step in the path of compromise with conscience. 
 See George Eliot, "Koniola," end of chap, ix, "A Man's Ransom."
 
 31] THE NEO-CLASSIC SCHOOL 89 
 
 ment. Hence the criminal should not be punished at all, 
 neither on the one account nor on the other: not on the 
 latter, because it was not a criminal offense, or, if one, be- 
 cause it is ruled out; not on the former, for though it con- 
 stituted an infraction of criminal law it does not involve 
 a free act. 
 
 To reach a different decision it would be necessary to 
 abandon the theory of responsibility and return to the con- 
 ception of the social risk. There is no real responsibility 
 for an act committed in a condition that is not free; there 
 is only the initial responsibility dating back to a former 
 action which was executed in a state of freedom and of which, 
 by an inevitable sequence, the present crime has become 
 the issue. The first and responsible action carries with it 
 the series of consequences. For an act committed in a 
 state of freedom the agent accepts the full responsibility, 
 not alone morally but socially and in all its consequences, 
 however remote. The act becomes related to the social 
 interest. To commit a crime involves the acceptance of 
 every responsibility which it entails, both with reference 
 to society and to all further contingencies. The agent in- 
 curs the risk of becoming dangerous to the community; 
 hence he is responsible for his further conduct, and society 
 punishes the resulting criminality. For every crime that 
 ensues society has the right to exact payment. It may be 
 that the issue was unintended, but it is the issue of conduct 
 adopted in a former state of freedom. This view may be 
 acceptable, but clearly it is no longer the principle of pun- 
 ishment based upon moral responsibility. It is the principle 
 of social responsibility so well described by Ferri and the 
 Italian school. According to them one is not responsible 
 for a crime unless it was premeditated in a state of free- 
 dom; at any rate, one is but socially responsible, because
 
 90 INDIVIDUALIZATION OF PUNISHMENT [ 32 
 
 the danger and injury to society which the action might 
 cause, should have been taken into account. Or if one holds 
 to the principle of moral responsibility the crime must be 
 considered as a misdemeanor due to negligence. The act 
 itself was not a free act, but was the issue of a previous 
 action committed in freedom. Such was the position of 
 the classic school relative to offenses committed in a state 
 of intoxication, when the crime was not premediated but 
 was the issue of indiscretion. The crime thus committed 
 refers back to the responsibility for the first error that 
 of indulgence in excessive drink and becomes a mis- 
 demeanor. Under the theory of responsibility a man so 
 fuddled by his vices and his passions as to have lost the 
 consciousness of freedom for his acts is like an intoxicated 
 man who acts blindly and who is responsible only for his 
 intoxication. Yet, is it quite certain that the criminal is 
 always really responsible for his intoxicated state? Is it 
 so certain that one can find a precise and decisive moment 
 which warrants, so far as any ordinary appearance goes, 
 the inference that it is freely determined and itself deter- 
 mines the future? May it be maintained that everyone 
 experiences such critical and impressive moments, when 
 the decision taken fixes the responsibility for the rest of 
 life? 
 
 32. The Social Responsibility for Grime 
 
 In the Middle Ages this issue between freedom and respon- 
 sibility was dramatically expressed. A man vowed himself 
 to God or to the Devil, and the vow once taken there was 
 to be no complaint of the final reckoning. But can it be 
 supposed that the story of Faust is repeated in the life of 
 every criminal? The ordinary criminal is from infancy 
 reared in crime and misery, with no other education than 
 that of vice, with no other trade than that of theft. Is it
 
 32] THE NEO-CLASSIC SCHOOL 91 
 
 possible to specify a moment in such a career in which there 
 occurred the free and critical act which justifies the ap- 
 plication of punishment? The most responsible factor in 
 such cases is poverty; and for this society possibly is re- 
 sponsible in that it imposes upon these unfortunates hard 
 conditions of economic life, with an inadequate education 
 and without the steadying support of religion. The fault 
 lies in the environment with its deprivations and its ir- 
 regular relations. It is a life without outlook and without 
 opportunity, and makes these lowly unprivileged classes 
 feel that they belong to another race, and that, after all, 
 to steal is their profession just as for the upper classes, whose 
 luxury they resent, the privileged life is the life of pleasure. 
 In the old-time ballads the humble were told that their 
 lot in life was the best possible. The simple life was de- 
 picted as a beautiful life, as furthering the mystic longings 
 of the soul, as secure in the promise of the life to come. Such 
 ballads endowed these lowly and simple folk with the priv- 
 ileges of the spiritual life, and awoke in them a correspond- 
 ingly deep feeling of morality, for they felt that being called 
 to future reward they must be more worthy. It was they 
 who formed the upright and virtuous portion of the people; 
 and the miracle was realized that the least fortunate class 
 in the world preserved their morality intact, maintained 
 a higher and stricter responsibility, and through such means 
 became, in truth, the most fortunate. Such ideal days no 
 longer exist. We have entered upon a period of disillusion- 
 ing realism, which reveals the conflict of classes and the 
 feeling of unconquerable antagonism among the various 
 strata of society. We are not in a position to understand 
 what may be the psychological conception of responsi- 
 bility on the part of the submerged, who have nothing to 
 lose by crime or by the penalties of the law. They probably
 
 92 INDIVIDUALIZATION OF PUNISHMENT [ 32 
 
 experience states of mind from which we are exempt and 
 which we can but feebly appreciate. Unquestionably there 
 are conditions of innate perversion, of hereditary degen- 
 eracy, which the environment but fixes and develops. Some 
 individuals do not seem to have at any moment of their 
 careers an active consciousness of a moral distinction thor- 
 oughly and intimately felt, such as the penal code requires 
 as evidence of responsibility. It is not possible in their 
 cases to establish a real and specific responsibility; neither 
 for their most recent crimes for which they are held to ac- 
 count, nor for the first petty theft, which, itself undetected, 
 may have been the starting-point for all the rest. But 
 does it follow that these criminals should be permitted to 
 live on in peace, and 'be free to continue their exploits as 
 they choose? 
 
 The first and chief objection to which the policy of in- 
 dividualization is exposed is that it encounters insurmount- 
 able difficulties in establishing a proper basis of application. 
 Instead of finding freedom of action everywhere, the newer 
 view is inclined to find it nowhere, and to recognize only 
 irresponsibility. All men at times entertain more or less 
 unworthy or perverse motives, more or less fierce or pas- 
 sionate impulses; and these, when developed to the ex- 
 treme, darken the mind and blind the reason, and thus 
 contribute to the immediate causes of crime, and like in- 
 creasing shadows obscure the waning freedom of action. 
 Shall they be regarded as a sufficient excuse, or even as a 
 justification, for acquittal? And though this supposition 
 seems an anomaly, to the discredit of juries let it be noted 
 that their verdicts have frequently made it a reality. When 
 we come upon quite inexplicable acquittals, and most un- 
 expected claims of extenuating circumstances, we suspect 
 and find that in fact there was an underlying belief that the
 
 33] THE NEO-CLASSIC SCHOOL 93 
 
 defendant lacked moral freedom. And since it is never 
 possible to tell whether moral freedom was present, there 
 enters an uncertainty that affects the entire position; and 
 verdicts in criminal as in other cases are commonly decided 
 by such impressions. 
 
 33. Motives and the Impressionism of Juries 
 
 Such is the first charge against the neo-classic school: 
 that in practice it encounters a difficulty, and that its prin- 
 ciples lead to untenable results. As a second objection, 
 it may be advanced that it is based upon a scientific error. 
 As M. Tarde has well demonstrated in his "Philosophic 
 penale," responsibility is universally recognized as a con- 
 ception of social origin. Therefore it must not be converted 
 into an abstract and preconceived notion, into something 
 quite visionary without any corresponding reality. It must 
 be taken as it is actually found in the general consciousness 
 of the people, as it is currently accepted by the average 
 mind. 
 
 It is the jury that best represents such average opinion. 
 Every legal or judicial application of responsibility that 
 runs counter to common opinion may be considered as a 
 scientific mistake of the first order; for it opposes the find- 
 ings of history. Though the principle is but vaguely ex- 
 pressed, there is found underlying the social aspect of 
 responsibility an inherent faith in the doctrine of freedom. 
 But it is noteworthy that, in practice, freedom is not relied 
 upon to determine the degree of responsibility in concrete 
 cases. Freedom is regarded as everywhere present, and 
 accordingly is never mentioned; as similarly it was not men- 
 tioned in the code of 1810. Freedom is a negligible factor 
 because it is assumed to be everywhere present. Attention 
 is centered upon the perversity of motives and upon the
 
 94 INDIVIDUALIZATION OF PUNISHMENT [ 33 
 
 circumstances that condone the crime, such as the ante- 
 cedents of the defendant, his environment, his education, 
 and his general morality. The majority of astonishing ac- 
 quittals are not due to the jury's belief that there was no 
 freedom of action. On the contrary, in such cases there is 
 usually established a deliberate intention and premedi- 
 tation, and of this the jury is thoroughly convinced. But 
 the circumstances of the crime, and particularly the motives 
 that incited it, are such as do not arouse general indignation. 
 They are motives that accord with the normal public opin- 
 ion. The criminal, far from appearing to the members of 
 the jury who must pass judgment upon him, as abnormal 
 through the perversity of his feelings, as deviating from 
 their own social standards, or as unattached or ill-adjusted, 
 appears as a fellow-man whose thoughts and desires and 
 passions are aroused as are theirs. The feeling that led 
 to the crime is such as is universally approved, and, on 
 occasion, is acknowledged by every one. The emotion is 
 possibly more violent than usual, but that is only a question 
 of degree. The man is not a being of another type, offensive 
 to the body social; his crime is regarded as an accident, 
 and not as the manifestation of a dangerous personality 
 to be scorned and repudiated. Accordingly, while well 
 aware that he is the material agent of the crime, juries ac- 
 quit him; they pronounce him unaccountable, and therefore 
 morally irresponsible. Their decision is reached not on the 
 basis of a mental defect but as a general psychological 
 impression. It is this complex yet definite group of senti- 
 ments that accounts for the majority of surprising acquit- 
 tals. The juries base their verdict not upon the greater 
 or less degree of freedom involved in the crime but upon 
 the nature and motives of the feelings that incite, control, 
 and characterize it.
 
 34] THE NEO-CLASSIC SCHOOL 95 
 
 And indeed to detach a human fact from the series of its 
 antecedent factors is wholly unwarranted and unscien- 
 tific. To make responsibility depend solely upon the evi- 
 dence of freedom is to separate the human action from 
 everything that contributes thereto, to look upon it ab- 
 stractly as an expression of pure will. Such a procedure 
 leaves out of account the motives, the fundamental im- 
 pulses, and all that leads up to and accounts for the act. 
 What could be more anomalous than that the criminal judge 
 regards such matters as indifferent, as unworthy of his con- 
 sideration! Furthermore he detaches from its setting the 
 act of the will which contributes the decisive impulse, as 
 though it were an isolated action, independent of circum- 
 stances and antecedents. The circumstances are considered 
 only in their bearing upon a judgment of the degree of will 
 and of freedom that the crime implies. Such procedure is 
 like dividing the human act in two and judging it by the 
 latter half alone. This is the least evidential and convinc- 
 ing if its moral status is to be* judged independently, 
 instead of being judged as a whole and in its inherent com- 
 plexity, as an expression of the morality or immorality of a 
 human individual whose future interests have a right to a 
 hearing. 
 
 34. Individualization Resulting from the Variable Attitude 
 
 of Juries 
 
 Furthermore, juries will not assent to the legal paradox 
 that requires responsibility to be determined solely by the 
 degree of freedom. Hence, under the influence of public 
 opinion, the jury introduces a twofold measure of individu- 
 alization. To begin with, the jury is thus instructed: "You 
 have not to consider the degree to which freedom was present 
 when the act was committed. From the point of view of
 
 96 INDIVIDUALIZATION OF PUNISHMENT [ 34 
 
 the law this is always the same. You have only to decide 
 whether the accused was of sound mind, and whether he was 
 the material agent of the crime; the question of freedom does 
 not concern you." But the jury, when charged with the 
 question of accountability, decides the issue upon this same 
 conception of freedom, and considers that its function and 
 duty is to estimate and appraise the degree of freedom. 1 
 This is the first step in the individualization of punishment; 
 but once launched, it is forced to go farther in the consider- 
 ation of the individual; and thus the second step in individu- 
 alization is reached. To determine the degree of freedom 
 is futile and impossible. The psychological judgment ob- 
 serves and confirms not the freedom of the action, for this is 
 always elusive, but the motives, the contributory causes as 
 a whole, which, various and complex, have incited the action. 
 The responsibility, as judged and considered by the jury, is 
 a responsibility based upon the aggregate complexity of the 
 moral causes that account for the commission of the crime, 
 and this is the principle that must be followed, because it is 
 the principle of all human estimates and judgments. Re- 
 sponsibility as ordinarily applied is a conception based upon 
 a preconceived conception of freedom; but it is determined 
 in fact and in its application by a strictly empirical standard. 
 The question of freedom remains the underlying issue; but 
 a deterministic principle furnishes the means of application 
 
 1 See the proposal submitted (on the 20th of March) to the Chambre des 
 deputes, by M. Briand, "having for its object to confer upon criminal juries 
 the power to consider the application of punishment." This proposal is 
 designed to place the law in complete agreement with the facts (Journal 
 officiel documents parlementaires, Chambre des d6put6s, No. 1605). Consult 
 the excellent study of M. Corentin Guyko, "Les Jures ' maitres de la peine '" 
 (Paris, A. Pedone, 1908). Also consult on the subject of the Briand pro- 
 posal an interesting letter of M . de Seigneux, the former president of the 
 "Cour de cassation" of Geneva, who sets forth in suggestive manner the 
 results of the reform at Geneva. Temps, April 4, 1908.
 
 34] THE NEO-CLASSIC SCHOOL 97 
 
 and remains the sole possible criterion of judgment. This we 
 observe universally in human judgments, and it equally 
 directs the deliberations of juries. 
 
 From this source arise, in practice, the wholly inconsist- 
 ent verdicts of juries, the injustice of which is well-nigh 
 scandalous; for there is no rule, no uniform standard of judg- 
 ment. At times the jury's attitude is derived from the con- 
 sideration of freedom and intent alone, and accordingly it is 
 the degree of premeditation that is considered. In other 
 instances freedom, will, and premeditation are disregarded, 
 and the crime is recognized as a freely willed action; and 
 then it is the motives and the determining circumstances of 
 the crime that are taken into account. There is likewise a 
 tendency to penetrate more and more deeply into the 
 analysis of the nature and character of the defendant, 
 utilizing the consideration of motives and contributory 
 causes for this purpose. All this leads to capricious and 
 variable decisions. Each jury has its own standards of 
 judgment, and each juryman individually has his. It is 
 almost a justice of chance, which is the worst and most 
 disconcerting of all. 
 
 But all this belongs more to the past than to the present. 
 We have reviewed the history of these doctrines, and what 
 has preceded may be considered as belonging to former 
 stages of penology. The state of affairs about to be con- 
 sidered belongs to the present, to the actual status of 
 criminal justice. It applies not alone to France but 
 wherever justice is subject through juries to the reflex 
 influence of popular sentiment and public opinion. We 
 have thus reached an alternative from which there is no 
 escape. We must either return to the purely abstract 
 and objective justice of the penal code or find, as best 
 we may, other measures of individualization, based not
 
 98 INDIVIDUALIZATION OF PUNISHMENT [34 
 
 upon an empirical procedure but upon a truly scientific 
 criterion. 1 
 
 1 The theory of diminished responsibility, involving as its sole conse- 
 quence the mitigation of the punishment, which is the essential principle of 
 the neo-classic school, has been the subject of active controversy since 1898. 
 In chronological order may be mentioned, first, the discussion upon "The 
 problem of the limited responsibility of offenders," in the ninth session of 
 the German division of the International Union of Penal Law, held in June, 
 1903, at Dresden (Bulletin de I' Union Internationale de droit penal, Vol. 11, 
 p. 625, seq.). The same problem was considered in the discussions before the 
 Societ6 g6n6rale des prisons in 1905, in the report of M. Leredu, relative to 
 the "Traitement a appliquer aux del in quants a responsabilitS limited" 
 (Revue penitentiaire, 1905, p. 43, seq., p. 187, seq., p. 313, seq., p. 474, seq.). 
 The question was reconsidered September, 1905, by von Liszt (Revue peni- 
 tentiaire, 1905, p. 1008). In the same year a discussion on this subject was 
 entered upon at the Congress at Budapesth (Revue penitentiaire, 1905, 
 p. 1183). 
 
 The work of Dr. Legrain, including an important preface by M. Garcon, 
 should likewise be mentioned, "Elements de medicine mentale appliques a 
 1'etude du droit" (Paris, 1906); and also the scholarly work of Dr. Grasset, 
 "Demi-fous et Demi-responsables" (Paris, 1907). Note particularly the 
 chapter on the "Demi-fous devant la justice," p. 218, seq. A critical review 
 of this book appears in the Revue scientifique of February 2, 1907, p. 143, seq. 
 "La responsabilit6 des criminels (Paris, 1908) was written as an outcome of 
 the important Congress of Alienists and Neurologists held at Geneva, August, 
 1907. It reports the discussion at the Congress, and the controversies that 
 followed. As opposed to the views of Dr. Grasset, the important report to 
 the Congress at Geneva by Dr. Gilbert Ballet may be read: "L'expertise 
 medico-legale et la question de responsabilite," Geneva, 1907. Also by the 
 same author, "La responsabilite des criminels" (an answer to Dr. Grasset), 
 in the Journal de psychologic normale et pathologique (January-February, 
 1908). [English translation of Grasset, 1909.] 
 
 Lastly, on the same subject, may be consulted the thesis by M. A. Neret, 
 " La Responsabilite attenuee," particularly chap, ii, p. 59, seq. Attention 
 should be directed to the very interesting discussion on this same question 
 that took place at the Societe francaise de philosophic, on January 30, 1908, 
 "Des Responsabilites attenu^es en matiere pnale," and to the able report 
 of M. A. le Poittevin, professor in the Faculty of Law at Paris (Bulletin de 
 la Societe frangaise de philosophic, March, 1908, p. 71, seq.). 
 
 Consult on these points articles 16 and 17 of the " Avant-projet du code 
 ix'nal suisse" (the text of 1903); and on " Zurechnungsfahigkeit," 51 of 
 the German penal code, apart from the Lehrbuch of von Liszt, see Reinhard 
 Frank, "Das Strafgesetzbuch ftir das deutsche Reich (Tubingen, Mohr, 
 p. 107, eq.).
 
 CHAPTER V 
 
 THE ITALIAN SCHOOL AND INDIVIDUALIZATION BASED 
 UPON FORMIDABILITY 
 
 35. Historical Review of the Italian Movement in Penology. 
 
 36. Practical Situations and Reforms: the making of the Recidivist. 
 
 37. The Solution proposes the personal Consideration of the Offender and 
 
 his Social Reinstatement. 
 38. Gradation by Presumptive Morality and Good Conduct of Offenders: 
 
 Protest against Promiscuous Association. 
 
 39. Criticism of the Position : its Basis in Law and Public Opinion. 
 40. Purpose and Effect of Punishment: Consequent Status of Crime. 
 41. The Types of Criminals and their Individualized Treatment. 
 42. Difficulties attaching to the Position of Lombroso. 
 43. A Third Italian School. 
 44. The Physical Recognition of the Criminal: Innate and Acquired 
 
 Degenerate Traits. 
 
 45. Other Phases of Italian Penology: Judicial Diagnosis. 
 46. What Italian Penology has accomplished. 
 
 35. Historical Review of the Italian Movement in Penology 
 
 THE several shades and grades of position of the classic 
 school have been passed in review, and their inadequacy 
 duly set forth. Let us consider the proposals offered in 
 place thereof. Shall we find the desired principles of indi- 
 vidualization in the contributions of the anti-classic modern 
 schools? That remains to be seen. It is familiar that the 
 modern school, which it has been agreed to call the Italian 
 school, is deliberately and radically opposed to the classic 
 legal system. No complete exposition of this school will 
 here be attempted. It will suffice to present a survey of its 
 teachings in so far as they pertain to the problem of in- 
 dividualization. 
 
 99
 
 100 INDIVIDUALIZATION OF PUNISHMENT [ 35 
 
 It may be well to begin by removing a slight misunder- 
 standing on the part of those unacquainted with the meaning 
 of the term "Italian school" in current penological theory. 
 It must not be supposed that under this generic term are in- 
 cluded all modern Italian criminologists. On the contrary, 
 it should be borne in mind that in Italy there always have 
 been and still are many distinguished criminologists, such 
 as Carrara (to mention only the most eminent), who belong 
 to a notable classic school, nor should it be forgotten that 
 Rossi was of Italian origin. But since Beccaria, Italy seems 
 to have been constantly at the head of the scientific move- 
 ment in the field of criminal law, and, indeed, may be said to 
 have been ever in advance of the age. Beccaria and his fol- 
 lowers rejected the abstract and objective foundations of 
 the classic school, and this at a time when the abuses of 
 the discretionary power of the judge seemed to show that 
 there was no alternative other than the provision of a gen- 
 eral and uniform application of a legal principle. Later, at 
 the time of Rossi, the Italian school, with the support of the 
 men who brought fame to its universities, became the pro- 
 moter of the great movement of individualization with 
 reference to responsibility, which may be considered as the 
 characteristic of the neo-classic school. For thirty years, 
 as is well known, this school has promulgated a new and 
 most radical reform. 
 
 Finally it should be noted that the classic Italian school 
 was the sole source and inspiration of the new Italian penal 
 code of 1889. This code is the most developed embodiment 
 of the neo-classic school. As a work legal in essence and hi 
 form, it is a most remarkable achievement; it presents an 
 unexampled nicety of distinction and detail; it enters into 
 a discerning analysis of the facts; it considers the minutest 
 details; and it anticipates every contingency. In it the law
 
 35] THE ITALIAN SCHOOL 101 
 
 takes the place of the judge; it aims to foresee and provide 
 for all possible cases of individualization, and to point out 
 the proper treatment. It is a catalogue of individual cases. 
 The judge has only to refer to his code to find the special 
 case applicable to the situation confronting him, and when 
 the case is found, the solution is at hand; he has but to read 
 and apply. The code is an admirable scientific production, 
 but unfortunately it serves as the epitome of a completed 
 stage, and not as the introduction to a further advance; and 
 for this reason it is unsuited as a basis of legislation. To 
 delay codification until a system is scientifically complete is 
 to run the risk of making it merely an historical record, the 
 registry of a movement that admirably summarizes the work 
 of the past but is no longer in conformity with the new con- 
 ceptions in process of formation. Codes of law, even at the 
 risk of omissions and imperfections, should be framed when 
 a system is beginning to enter public consciousness. They 
 should direct the application and the formulation of the doc- 
 trines based upon them. If they appear when the system 
 they represent is far along in development, and, indeed, close 
 to its decline, they are no longer in sympathetic contact with 
 life; and for legislation this is a serious evil. This misfortune 
 is perhaps threatening both the new Italian penal code and 
 the proposed revision of the French penal code, unless, in- 
 deed, prompt measures for fundamental reconstruction of the 
 latter be taken. The abuses involved in the abstract char- 
 acter of the Italian classic school have given rise to another 
 school which is known simply as the Italian school without 
 further qualification. 
 
 An extremely important scientific movement began in 
 Italy about 1875. 1 In general the movement was the culmi- 
 nation of several positivist systems, but was inspired more 
 1 The first edition of Lombroso'a "The Criminal" appeared in 1876.
 
 102 INDIVIDUALIZATION OF PUNISHMENT [35 
 
 particularly by the growth of two sciences of relatively recent 
 origin, anthropology and sociology. Thus this new Italian 
 school has variously been called the positivist, or the an- 
 thropological, or the sociological school. To include its 
 several aspects without committing oneself to any one in 
 particular, it has been called more generally and with suffi- 
 cient definiteness the Italian school. 
 
 This school, whose most distinguished representatives are 
 Lombroso, Ferri, Garofalo, Sighele, arose as a direct reaction 
 against the principle of the freedom of the will as understood 
 in the classic sense, which made crime the issue of a free act. 
 The Italian school looks upon crime as a natural product, as 
 a result of purely natural factors that leave no place for 
 freedom. For Lombroso these factors are almost wholly 
 anthropological; for Ferri they are more particularly sociologi- 
 cal; but this distinction is not important. 1 Whether crime 
 is the issue of hereditary conditions or of factors purely social, 
 it is, in either case, the necessary consequence of a group of 
 natural conditions hi which the conception of freedom has 
 no place. The significant social factors include the moment- 
 ous influences of the environment, the economic conditions 
 of life, the limitations of poverty, or rather, hi M. Tarde's 
 phrase, the reflex influence of increasing luxury and of the 
 corruption which its example spreads through all stages of 
 society. 
 
 The divergences in the position of Ferri and Lombroso are 
 of slight consequence, at least so far as they concern the in- 
 trinsic character of crime; for both, crime is a purely natural 
 product. As it affects the masses, it has a social function 
 analogous to that attaching to war; it serves the same func- 
 tion of elimination in its relation to individuals. As is also 
 
 1 Ferri, "Sociologie criminelle"; see also Vaccaro, "Genesi e funzioni delle 
 leggi penali."
 
 36] THE ITALIAN SCHOOL 103 
 
 true of war, crime seeks only to transform and not to destroy; 
 and in so far there is a common psychological or sociological 
 inspiration. 1 It is however important to distinguish be- 
 tween the point of view of Lombroso and that of Ferri in so 
 far as relates to the practical consequences of their views and 
 the reforms which each proposes to introduce in criminology. 
 
 36. Practical Situations and Reforms : the Making of the 
 
 Recidivist 
 
 Although on the positive side the Italian school appears 
 primarily as the consequence of a series of philosophic and 
 scientific considerations, it presents as well a negative side, 
 which is based upon a criticism of the results attributed to 
 the prevalent system. Yet this dominant school, if judged 
 by its results, may be said to have gone bankrupt, as the 
 popular expression goes. 
 
 The level of a movement is never higher than its source. 
 Under the influence of the leading idealists (Rossi), criminal 
 law became humanized, ennobled, and in a measure spiritual- 
 ized. The conception of freedom remained its starting point; 
 yet equally the analytic study of each offender was under- 
 taken. The conception of penalty as a satisfaction due to 
 the sense of justice was retained; and equally, in a happy 
 eclecticism, punishment began to be looked upon as an in- 
 strument of social defense. The practical interests were 
 combined with those of abstract justice, and jointly there 
 emerged the conception of a social justice, an appropriate 
 expression that meets the requirements of principle and of 
 society alike. It seemed that in this advance criminal law 
 had reached its highest development. Reflecting the popular 
 acceptance of natural law in human affairs, criminal law 
 seemed to have found its true principle as part thereof. This 
 
 1 See Lombroso, "La Funzione sociale del delitto," Palermo, 1896.
 
 104 INDIVIDUALIZATION OF PUNISHMENT [ 36 
 
 however did not affect the practical results, for crime had 
 never been more prevalent. The tide of crime arose with 
 each successive statistical inquiry, and the more severely 
 justice was administered, the more crime increased and spread. 
 One seemed justified in believing that punishment was the 
 chief concern of criminology, and that criminal laws favored 
 the growth of crime. 
 
 In truth the increase of crime was largely due to the re- 
 cidivists; or to be more exact, to young offenders and re- 
 cidivists jointly. But perhaps the two are, in origin, one. 
 The criminality of the young leads to their technical acquittal 
 with detention in reformatories; when they are again sen- 
 tenced at adult age they are put down as first offenders in 
 the official statistics, and in law they are such. In reality 
 they are habitual offenders, graduating from a state colony, 
 who give evidence of the effect of the penitentiary system. 
 They illustrate its results and its value. It may be urged 
 that from the days of their adolescence these youthful 
 offenders are already so thoroughly contaminated that no 
 penitentiary discipline, no educational system, can serve to 
 redeem them. Very possibly the defect lies in them, in their 
 character, and not in the remedial measures. Lombroso and 
 Ferri hold that they are either born criminals or by nature 
 incorrigible. This is not the view of those who believe in 
 responsibility and freedom, and consequently in the possi- 
 bility of reform through moral appeal. The Italian school 
 takes its stand squarely on the other side of this issue. Yet 
 the school, together with the legal practices which it upholds, 
 is in every respect losing ground. 
 
 Moreover, apart from the persistence in crime of young 
 offenders, as above noted, statistics establish a considerable 
 increase of crime among habitual adult offenders, that is, 
 of those whose first sentence occurred after they had reached
 
 36] THE ITALIAN SCHOOL 105 
 
 majority. In so far as this is true either of minors or of 
 adults, and whether we consider penal colonies or jails, in 
 general it may be said that prison life breeds the prison 
 habit. When the increase of crime occurs particularly 
 among first offenders, the social conditions are primarily 
 unwholesome and public morality low ; and this at present 
 is the case. But when the growth of crime reaches its high- 
 est point among recidivists, it is the punishment that is at 
 fault, since in place of preventing crime, it encourages it. 
 Instead of eliminating the latent and potential criminality 
 of offenders, it furthers it ; and it does so by weakening 
 the sense of honor and personal worth, which is among the 
 surest safeguards of morality, and, for the majority of men, 
 the most enduring. 1 
 
 If a system is to be judged by its results, the classic school 
 may be pronounced a failure. To this it may be replied 
 that the fault lies not in the system of punishment as deter- 
 mined by the law or the judge, but in its administrative 
 application, and that a theoretical school is responsible only 
 for the code and for its influence upon the judiciary but does 
 not control the administration of punishment. Therefore 
 it is not the penal code that is at fault, and still less the 
 judge or the jury, but it is the administration of the pun- 
 ishment. It is the promiscuous association within the 
 prison, the contamination of its communal life, and the 
 
 1 In addition to the striking article published by M. FouilUe in the Revue 
 des Deux Mondes, January 15, 1897, see the chapters by M. Henry Joly in 
 "La France criminelle," p. 164, seq., p. 179, seq. (also an article by M. FouilUe 
 in La Revue Bleue, October 30, 1897). Also Joly, "Le Combat centre le 
 crime," p. 156, seq., p. 182, p. 203, seq.; and the lecture delivered by the 
 latter at the Young Men's Christian Association on January 22, 1898, on 
 the "Criminalite de la jeunesse," published in the Reforme sociale, 1898, 
 p. 433. See Eugene Rostand, "Pourquoi la criminality monte en France et 
 baisse en Angleterre," in the Reforme sociale, pp. 345, 531, 585, and a sup- 
 plement in the same review, p. 850.
 
 106 INDIVIDUALIZATION OF PUNISHMENT [ 36 
 
 exposure to the vices of humanity, that make the habitual 
 criminal. A first offender introduced to this environment 
 becomes the companion and partner of the most corrupt 
 among the corrupt, and inevitably loses the last remaining 
 vestige of honor. To maintain the emotions actively effi- 
 cient requires the support of an environment; they live 
 their life in a world without, as well as within, and require 
 an external influence, either of social intercourse or of un- 
 worldly communion as provided by religious faith. Direct 
 personal contact is essential. The man who shares his life 
 with degenerates inevitably assimilates his character to 
 theirs. Moreover, the safeguard of morality, especially 
 where its survival is somewhat uncertain, is the sense of 
 personal honor and esteem, and this, in turn, depends upon 
 influences of social origin. It consists in feeling oneself a 
 member of a larger or smaller group, of a human community, 
 accepted by it, esteemed by it, and not excluded therefrom; 
 it is the feeling of forming a part of an organism and re- 
 flecting a collective consciousness; in default thereof, one 
 drifts to the outcasts. Punishment, through its discredit- 
 ing stigma, withdraws the criminal from the group of the 
 honest and sends him over to the criminal community. It 
 makes him a man dishonored and branded, an exile from 
 the reputable social life. Even though he is not corrupt 
 and has withstood contamination within the walls, the 
 prison removes him from the class of the honest. The only 
 social life that prison affords him is that incorporated in a 
 community which is under the social ban, though it likewise 
 has its social organization. He belongs to them and there 
 is every chance that he will remain one of them ; and thus 
 is the recidivist accounted for. The fault is not with the 
 legal system of the penal code; and the classic school is 
 not responsible for it. The fault lies in the administration
 
 37] THE ITALIAN SCHOOL 107 
 
 of punishment and especially in the promiscuous associa- 
 tion of prison life. 
 
 37. The Solution proposes the Personal Consideration of the 
 Offender and his Social Reinstatement 
 
 To remedy this defect is the commendable purpose of 
 the penitentiary school. Its most distinguished represent- 
 atives, if not its most successful results, are to be found 
 in France. Its adherents are many and especially among 
 the representatives of the bench. Indeed, the interest 
 and the generous humanitarian spirit displayed by the 
 French judiciary in the problems of punishment and in 
 proposed reforms has not been sufficiently recognized. The 
 eager and earnest desire for improvement that is finding 
 universal support cannot be too cordially acknowledged. 
 Through the influence of this movement there have been 
 inaugurated prison congresses of international scope, and 
 these serve as the great centers of interest, which in turn 
 stimulate desirable reforms. To it also is due the French 
 "Societe generale des prisons," which, in its field, serves 
 as a permanent congress, devoted to the study of problems 
 as they arise, and to furthering the improvement of punitive 
 treatment. The publication of its "Bulletin" is a means 
 of recording and popularizing its conclusions. By broad 
 discussion and analysis it seeks an insight into problems 
 and prepares the way for legislative enactments. Its ser- 
 vices extend beyond France to all countries where penology 
 is considered. There is hardly a recent European criminal 
 law which is not under obligation, for its form as well as 
 for its data, to the "Revue penitentiare frangaise. " The 
 reforms sought by this large penological school may be 
 reduced to two: the first, the segregation of the condemned 
 during the term of punishment with a view to prevent their
 
 108 INDIVIDUALIZATION OF PUNISHMENT [ 37 
 
 contamination by associates and to facilitate their reform; 
 and the second, the social reinstatement of those who have 
 served their term, their return to the group of honest men 
 from which they have been excluded, with the purpose to 
 secure their readjustment to, and their participation in, 
 an environment of work and an honest and regular life. 
 
 We thus reach the conclusion that it is not the legal but 
 the administrative side of penal legislation that is in need 
 of reform. The penal code, and yet more clearly the crim- 
 inal law, need not be disturbed; it is the manner of ad- 
 ministering punishment that requires modification. Yet 
 an administrative reform is not adequate to bring about 
 a proper administration of punishment, for the law pre- 
 scribes the mode of administering punishments. Accord- 
 ingly, in this respect, the penal code must be reformed. 
 Possibly it will be sufficient to revise some of its articles; 
 possibly the fundamental principles on which the system 
 of the penal code itself is based must be modified. This is 
 to be determined by the penological movement itself. For 
 sooner or later the principle advanced by this school must 
 bring about a reform, not alone of the administration of 
 punishment but of the legal system of its individualization. 
 
 This does not imply that the penological school has ac- 
 cepted the principle of the Italian school. Such is not the 
 case, and it would be unjust so to regard it. But in a certain 
 measure the two are in accord ; unintentionally the one 
 has prepared the way for the other. It may be interesting 
 to examine the common ground and set forth the points 
 of agreement of the two systems which, superficially, seem 
 inconsistent. 
 
 Obviously the basis of the theories of the penological 
 school is the consideration of the individual temperament 
 of the condemned. When sentence has been passed he
 
 37] THE ITALIAN SCHOOL 109 
 
 must at once be treated according to his merits rather than 
 according to the crime. The crime must be ignored in order 
 the better to see the man, for thus only is reform possible, 
 and the purpose of the penological school is the reform of 
 the criminal. Now all reform comprises two functions : 
 the negative one of preservation, consisting in this case in 
 withdrawing the man from contaminating influences, and 
 the positive one of reformation, which is directed to the 
 remoulding of the moral character. Accordingly, since no 
 education is possible without a suitable adaptation of the 
 means to the nature and character of those concerned, 
 the punishment must be adapted to the temperament of 
 the individual. 
 
 It must not be inferred, however, that the penitentiary 
 policy is to be confused with what may be called the policy 
 of solitary confinement. The fact of prolonged segregation 
 is indeed the most radical and the most primitive method 
 of reformation, but it is also the least adequate means of 
 education. If education through punishment is to consist 
 in fitting the prisoner to resist the temptations of environ- 
 ment and associates, it must be conceded that it is an illogical 
 measure to shield him from every temptation and to with- 
 draw him wholly from social life. If it is functioning that 
 develops or, at all events, affects the organ, it is a strange 
 procedure that in order to prepare the organ for service one 
 should deprive it of opportunity to function. Accordingly 
 many criminologists, particularly the English, believe that 
 solitary confinement for long-term punishments has only a 
 provisional value, that of getting the prisoner to realize 
 his situation by leaving him for a time to his own reflections. 
 But the practice must not be abused. To effect the reform 
 of a developing character, it is well to encourage initiative. 
 A communal life is not to be feared provided that it is prop-
 
 110 INDIVIDUALIZATION OF PUNISHMENT [37 
 
 erly safeguarded. A new apprenticeship of life must be 
 undertaken, and particularly in the moral sphere. There 
 should be no hesitation in guaranteeing a properly limited 
 initiative such as a penal regime permits. Yet there re- 
 main the difficulties of proper safeguards. These, one be- 
 lieves or hopes to find in a system of successive grades of 
 privilege. According to the behavior of the prisoner and 
 the progress made, he passes from one stage to another, 
 and by a system of gradual reinstatement he reaches his 
 freedom, that is, a conditional freedom whenever reform 
 seems assured. The progress is thus tested at each stage. 1 
 The principle involved has been applied in the Australian 
 system of deportation. It was devised by Walter Crofton, 
 and was first applied in Ireland. It has become the English 
 penitentiary regime under the name of the "progressive 
 system." This system of progressive promotion may be 
 recommended and in part applied, particularly to such coun- 
 tries as ours in which solitary confinement for long-term 
 sentences is not in vogue. For example, it would be readily 
 adaptable to our system of deportation. The basis of the 
 system of our law of 1854 (on the administration of penal 
 servitude in the Colonies) is the progressive English system. 
 Thus a first attempt, although a crude one, must here be rec- 
 ognized in the adjustment of punishment to the progressive 
 improvement of the individual. 
 
 The present demand is for the perfection and extension 
 of the practice now crudely and indiscriminately applied 
 to sentences of penal servitude. It has been urged that 
 the system be extended to the penitentiaries; and M. Le- 
 veille has urged its application to the military company 
 
 1 For details see Aschrott, " Straf ensystem und Gefangniswesen in Eng- 
 land," p. 50, jaeq., p. 70, seq., and particularly p. 181, seq., and 195, seq. Also 
 Krohne, "Lehrbuch der Gefangniskunde," 10.
 
 38] THE ITALIAN SCHOOL 111 
 
 known as the African Battalions, to which are sent, at the 
 time of their enlistment, young recruits who have already 
 undergone certain special sentences. In its detail the plan 
 presents some difficulties of application, but the principle 
 is clear. 1 It is the principle of classification or gradation 
 according to the presumptive degree of morality. Unques- 
 tionably the practice involves a considerable inequality 
 in the administration of punishment, yet an inequality that 
 is beneficent and strictly humane and just. Moreover it 
 is an inequality, as explained above, in which is considered 
 not the crime committed and its social gravity, but the moral 
 status of the individual and the prospects of reinstatement 
 of which he gives promise. 
 
 38. Gradation by Presumptive Morality and Good Conduct 
 of Offenders : Protest against Promiscuous Association 
 
 Admittedly this seems to distort and confuse the issues. 
 The kind of individualization just mentioned is to be applied 
 only in the administration of the punishment and in con- 
 formity with the progressive improvement of the con- 
 demned. A premium is placed upon the good conduct of 
 the prisoner, and he is encouraged to exert himself, and 
 accordingly to further his own moral advancement. Such 
 individualization is not determined by the judicial sentence 
 at the time of condemnation, when an attempt is made to 
 select a punishment in terms of the individual and not of 
 the crime. It is not an initial decision made at the outset 
 and before the administration of the punishment has re- 
 vealed the nature of the individual committed to its charge; 
 
 1 See the report of M . Leveille to the Soci6t generale des prisons (Revue 
 penitentiaire, 1896), p. 1007, seq., p. 1199; and the plan of M. Leveiltt in the 
 same review, p. 1217, and in the Revue penitentiaire, 1897, p. 519. Also the 
 proposal of M. Pierre Richard at the meeting on December 2, 1897 (Revue 
 penitentiaire, 1898, p. 145).
 
 112 INDIVIDUALIZATION OF PUNISHMENT [38 
 
 it is a re-classification made after the sentence, and during 
 the execution of the punishment, and based upon the pro- 
 gressive improvement of the prisoner. It thus bears but 
 indirectly upon the principle of uniformity and equality 
 of punishments ; for since it puts a premium upon good 
 conduct, all may merit and attain it. It is made a part of 
 a generally applicable discipline. The principle of equality 
 before the law remains secure, and this is one of the most 
 inalienable principles of our criminal law. The individual- 
 ization made after the sentence and in course of punishment 
 and under the form of progressive promotion by reason of 
 the good conduct of the condemned does not constitute 
 an exception thereto. 
 
 But the penological school is not content with this belated 
 individualization reached in course of punishment but per- 
 mitting an initial promiscuous association of all condemned 
 to the same discipline. For this period may permanently 
 contaminate, or at least expose to the worst influences, such 
 of its unfortunate victims as retain a vestige of virtue, who, 
 though guilty of an isolated infraction, have not lost the 
 sense of right and wrong. By the logic of its principles 
 the penological school opposes such conditions. In the 
 absence of solitary confinement, and at all events as a 
 subsidiary measure, it urges a preliminary segregation of 
 prisoners. It proposes, for example, instead of a sepa- 
 ration in different quarters within the same reformatory 
 institution, a separation which is never complete, a 
 definite assignment of different groups of offenders to dif- 
 ferent reformatory institutions. In this way the offender, 
 from the beginning of his punishment and according to the 
 character which he presents, would be sent to an appropriate 
 institution and placed in an appropriate group with his equals, 
 that is, with persons of an approxminately similar morality.
 
 38] THE ITALIAN SCHOOL 113 
 
 The French law of 1875, on the partial application of 
 solitary confinement as applied to those committed for 
 more than a year to penitentiaries with their promiscuous 
 associations, grants a possible conversion of the punish- 
 ment, in response to a request for a change of discipline. 
 Such prisoners are allowed upon request, even from the 
 beginning of then* sentence, to serve their time in solitary 
 confinement ; and M. Leveille, whose scheme of reorgan- 
 ization of the African Battalions has already been referred 
 to, asks the like privilege for certain types of convicts, so 
 that instead of serving their time in jail they may be per- 
 mitted to serve a double or even a triple period in the colo- 
 nial military service, and thereby earn their reinstatement 
 and pay their debt to society. 1 This amounts to a method 
 of individualization from the very outset of the punish- 
 ment, an initial segregation into different groups of the 
 condemned, applied administratively in place of judicially. 
 
 A provision of this type appears in the application of the 
 law of 1885 on the deportation of recidivists. Our colonial 
 arrangements provide two forms of deportation: the one 
 involving a true penitentiary discipline in the colony, and 
 the other assigning a discipline in freedom or in partial 
 freedom. Upon the rendering of the sentence an admin- 
 istrative commission in Paris passes upon the classification 
 of the deported into one or the other of the two forms of 
 deportation; and it does so without considering the crime 
 committed. 
 
 Such provisions indicate a tendency to make the indi- 
 vidualization an initial one in terms of the individual, and 
 not a progressive adjustment according to his behavior 
 during the course of punishment. By such a procedure 
 the worth of the individual may be considered at the outset, 
 1 See Revue penitentiaire, 1897, p. 513, seq.
 
 114 INDIVIDUALIZATION OF PUNISHMENT [39 
 
 even at the moment when sentence is passed; according 
 to his character, his environment, and his antecedents, a 
 suitable regime of punishment may be arranged. 1 
 
 Such measures are at present carried out through the 
 channels of administration, without legal or judiciary war- 
 rant. Is there any reason for not assigning to the judge 
 the duty of making this first individualization, when it may 
 be determined under the influence of the facts given in the 
 evidence, the impression produced upon the hearers, and 
 the important guarantee of publicity? The individualiz- 
 ation is thus determined openly rather than through the 
 variable influences to which administrative procedures are 
 subject. 
 
 39. Criticism of the Position : its Basis in Law and in 
 Public Opinion 
 
 The principle of the penological school has as its neces- 
 sary consequence the substitution of the consideration of 
 the criminal for the exclusive consideration of the crime. 
 The Italian school makes the same demand ; the form of 
 its demands and their acceptability remain to be examined. 
 
 Before taking up this point let us review the conclusions 
 reached. In the first place it appears that the classic school 
 is condemned by its practical results. Yet in justice some 
 reservation of this verdict must be made and certain ob- 
 jections met. The criticisms set forth that the fault lies 
 in the administration of punishment and not in the judiciary 
 system; the principle of legal and judicial equality of pun- 
 ishment remains secure. Admittedly if there is anything 
 
 1 This argument applies with greater force to the system of parole, or, 
 properly speaking, of pardon, which is a matter presently to be considered 
 in our penal legislation, under the name of the law of pardon. On this sub- 
 ject see M. Octave Aubry, " L'indulgence et la loi" (Paris, Libraire gen6rale 
 de droit et de jurisprudence, 1908).*
 
 39] THE ITALIAN SCHOOL 115 
 
 awry in penology it is the mode of administration of pun- 
 ishment, and it is here that the remedy is to applied. We 
 have come to realize that the remedy can be effective only 
 by abandoning the initial, that is, the judicial equality of 
 punishment, by adapting the punishment through the 
 judiciary procedure to the individual rather than to the 
 crime. The idea that for the same crime there must be 
 imposed a punishment alike in nature and equal in duration 
 is indeed no longer tenable. To recognize that existing con- 
 ditions can be remedied only by beginning at this point, 
 is to admit that the whole system, or much of it, must be 
 reformed, that its foundations must be reconsidered. In- 
 deed the basis of the classic system is most uncertain. 1 Such 
 is the state of the problem. It is in presence of this situ- 
 ation and of results unfavorable to the dominant school 
 that the Italian school has come forward. Let us see what 
 it proposes to accomplish. 
 
 The position of the Italian school may be reduced to a 
 very simple formula; it proposes a system of applied soci- 
 ology based upon determinism and accepting it as its guiding 
 principle. Whatever in this position does not come directly 
 from sociology is but a slightly disguised deduction there- 
 from. Sociology primarily observes and determines facts, ac- 
 cepts principles established by historical experience, which 
 in turn form the basis of the laws of social psychology. 
 Now among these principles, which lie at the base of public 
 sentiment, there are some that remain secure despite the 
 passing of philosophies and the disappearance of creeds ; 
 
 1 Moreover, whenever the advocates of the classic school agree and are 
 disposed to record their opinion on the subject of the operation of the actual 
 system, they testify that it is disastrous and leads to unfortunate conse- 
 quences. See, in reference thereto, an especially instructive discussion at 
 the Societd generate des prisons, on the "Suppression of Vagabondage," 
 March 16, 1898. Revue penitentiaire, April, 1898.
 
 116 INDIVIDUALIZATION OF PUNISHMENT [40 
 
 such is the belief in responsibility, and, however vague, the 
 conception of moral freedom. It is upon them that the uni- 
 versal distinction is made between the repressive measures 
 applied to criminals and the purely preventive measures 
 taken against the insane. The criminologist, especially 
 if he is also a sociologist, must take account of these sen- 
 timents and of their reaction upon criminology. A system 
 of punishment that disregards them would so conflict with 
 popular sentiment as to be thoroughly impracticable. To 
 construct a criminology as an abstract system, without 
 considering the popular collective consciousness, would be 
 to follow the plan of Sieyes in his construction of political 
 constitutions. Such philosophical dogmatism has had its 
 day. 
 
 40. Purpose and Effect of Punishment : Consequent Status 
 
 of Crime 
 
 Now let us consider the proposals of the Italian school 
 and the necessary logical conclusions to which it is com- 
 mitted. Man cannot control the direction of his impulses 
 or of his moral propensities. According to Lombroso crime 
 is the inevitable issue of a pathological temperament, and 
 according to Ferri it is a result of the social environment 
 and economic conditions governing human existence. Hence 
 punishment can have no social status either as a penalty 
 or as disapproval. Atonement can be exacted only for a 
 wrong which one was free to avoid, and reproof can be de- 
 manded only for evil issuing from an act of free will. Pun- 
 ishment is only a means of public defense and security, 
 analogous to the preventive measures taken against danger- 
 ous animals or insane men. Moreover there are no repres- 
 sive measures; there are only measures of prevention to 
 check the repetition and dissemination of crime. What
 
 40] THE ITALIAN SCHOOL 117 
 
 is dangerous in the criminal and makes him a menace to 
 society is not the crime once committed but the criminal 
 himself : his personality, his temperament, ever leading 
 him to further crime ; the latent fundamental impulses 
 which, when acted upon by circumstance, may break out 
 into murder, theft, or offenses against morality. How is 
 society affected by the punishment of the crime or the 
 failure to punish it? The evil done belongs to the past. 
 Nothing remains but to repair the injury inflicted it this 
 be possible. The greater concern is to prevent crime in 
 the future; and for this the criminal instinct in the crim- 
 inal must be checked or suppressed, or if, as is most com- 
 monly the case, such a prospect seems unrealizable, it is 
 the criminal himself who must be disposed of, as would be 
 done in the case of a plague or a dangerous animal. It is 
 with reference to his evil potentiality, to the dread that he 
 arouses (which the Italians call La temibilita, the formid- 
 ability of the offender) that prospective measures must be 
 framed. They must be directed to reform in so far a* any 
 measure of improvement yet remains possible, or, if none 
 is possible, to elimination. Such, approximately, is the 
 logical position of the Italian school. 
 
 In this view the crime committed has an altogether dif- 
 ferent status from that assigned to it by the classic school. 
 It is no longer the fixation point of punishment; it ceases 
 to be the punishable factor. The older view recalls the 
 primitive theory of the right of vengeance; as though one 
 turned against the author of the injury to make him ex- 
 piate it by subjection to punishment. Crime has no status 
 except as a symptom of the criminal instinct of the agent, 
 as an indication of his dangerous character. There are no 
 punishable actions, only individuals to be placed beyond the 
 range of doing harm; and crime serves to identify them.
 
 118 INDIVIDUALIZATION OF PUNISHMENT [41 
 
 Crime has a purely symptomatic value. The record and 
 the appearance of the criminal, to speak in the spirit of the 
 system, are to be substituted for that legal entity known 
 as crime. The catalogue of crimes is to be replaced by a 
 classification of criminals. Instead of adjusting the pun- 
 ishment to the presumed gravity of the offense, it must be 
 adjusted to the nature of the criminal. It is not of crime 
 but of criminality that we are to speak; and the one is by 
 no means the evidence of the other. The one is a fact, and 
 the other a psychological factor. The two conceptions are 
 not necessarily identical. Criminality always breeds crime, 
 but crime is not always the issue of criminality. The legal 
 system is wrong in associating the two. Every truly scien- 
 tific system must clearly distinguish between them. 
 
 41. The Types of Criminals and their Individualized 
 Treatment 
 
 Henceforth criminals must be separated into two mu- 
 tually exclusive groups: those amenable to improvement, 
 and those who are not. The latter, the refractory to pun- 
 ishment, the incorrigible, form the group that cannot be 
 assimilated and made part of the social life. There is 
 nothing to be done but to place them beyond the possibility 
 of doing harm, to suppress, or to eliminate them. The 
 former are to be carefully studied and assigned to appro- 
 priate groups, for though presumably amenable to regener- 
 ation, they may not be responsive to the same measures. 
 If, as Lombroso holds, crime is primarily a pathological 
 phenomenon, punishment, or what will still bear the name, 
 must be adjusted to the type of disorder or criminal disease 
 which is to be cured; and this brings us to the theory of 
 penal individualization in the true and proper sense of the 
 word. Such individualization will no longer consider the
 
 41] THE ITALIAN SCHOOL 119 
 
 crime committed; it will even disregard the degree of re- 
 sponsibility, for responsibility bears upon the accountability 
 towards a particular action, which is not here pertinent. 
 Such individualization will consider the true nature of the 
 individual, his latent and potential criminality, and will 
 seek to adjust the punishment to the requirements of 
 moral improvement which each criminal presents. Such 
 is the new individualization proposed by the Italian 
 school. 
 
 Surely this type of individualization has great merit; 
 and further progress must be directed to its practical ex- 
 tension. Yet what may almost be called deterrent in the 
 Italian school is its formal reasoning, its radical and in- 
 sistent logical position ; here, as elsewhere in the field of 
 law, there is a natural recoil from the rigid logical attitude. 
 It needs no further insistence that logic may perhaps pro- 
 duce revolutions, for it may express the simple conviction 
 of the masses and the psychology of the crowd; yet unques- 
 tionably society in a normal condition does not proceed 
 by logic but by something quite different. It lives upon 
 realities which are complex, and the complexity of the fric- 
 tion of diverse interests and their final issue is something 
 decidedly opposed to the straight lines and regular contours 
 of logic. Reality disturbs the outline. It is the spirit of 
 abstraction, of dogma, or of radicalism (which amounts to 
 the same thing), that attempts to mould a structure as a 
 whole and to hold it inviolable. 
 
 The logical principles of the Italian school lead to two 
 conclusions: first, to hold exempt from punishment many 
 guilty of crime; and secondly, its converse, to punish in ad- 
 vance some who have not as yet committed crime. This 
 makes two new classes of criminals: the one, the not-to-be- 
 punished criminal, or the group of pseudo-criminals; and
 
 120 INDIVIDUALIZATION OF PUNISHMENT [41 
 
 the other, those to be punished without having become 
 criminals, or the group of suspects. 
 
 Let us consider the first group, the pseudo-criminals, 
 and fortunately for mankind they are still very numerous. 
 It includes first offenders whose crime was but an irregular 
 incident, who have been tempted to abuse the confidence 
 placed in them, or even to commit a serious crime, under 
 conditions in which their true nature did not prevail. Such 
 crimes might indicate that they did not as yet possess the 
 criminal impulse ; but that imprisonment might develop 
 it. Their character is not yet involved. Punishment is 
 altogether unnecessary as a preventive for further misdeed 
 and may prove a menace. There is no abnormality to be 
 cured, no disposition to be reformed; at most there is 
 needed a break from the old habits or a change of environ- 
 ment. What good will punishment do? What we call pun- 
 ishment has no longer the function of chastisement, that 
 is, hi reference to the evil committed, but its function is to 
 prevent evil in the future by cure of elimination, and that 
 is not here relevant. There is nothing to be cured and still 
 less to be eliminated. Punishment would be useless and 
 therefore unjust. Such are the characteristics of the pseudo- 
 criminals or of the fictitious criminals who are not to be 
 punished. It is thus made clear that a distinction must 
 carefully be drawn between the external appearance of 
 criminality and that which alone is significant, an inherent 
 criminality. The former is a superficial phenomenon; it 
 is revealed hi an external act in which it is embodied and 
 made manifest. Shall it be regarded as an index of the true 
 criminality that discloses the intimate character? The 
 reply cannot be determined in advance. The crime may be 
 an acute crisis, quite incidental and transitory, without 
 likelihood of a disastrous return. The true criminality
 
 41] THE ITALIAN SCHOOL 121 
 
 against which measures must be taken is chronic criminality, 
 the issue of fundamental character which at any time may 
 express itself in criminal action. Hence we should put in 
 a group by themselves criminals who lack such inherent 
 criminality; they show the phenomenon of criminality but 
 no natural criminal tendency. They are criminals only in 
 the eyes of the law. 
 
 The second group forms a serious problem. Here belong 
 cases of natural criminality not yet expressed in legal crim- 
 inality, an inherent and demonstrated criminal tendency 
 that has not as yet issued in crime. The group includes 
 such as should be liable to punishment without having 
 become criminals; in other words, those who are the ob- 
 jects of suspicion. If society is to be defended against future 
 crime, then, obviously, society must take possession of the 
 criminal before he commits his crime. When a house threat- 
 ens to fall and is a menace to passers-by, one does not delay 
 its repair until an accident has occurred. Similarly in deal- 
 ing with the insane who threaten to become dangerous, 
 they are confined before they cause disaster. When an 
 animal is suspected of having an affection that may prove 
 a source of danger to others, it is confined or killed, even 
 before the contagion breaks out. Why hesitate to segregate 
 the instinctive criminal, born and reared in vice, and inca- 
 pable of assimilation? He was not made for a social life, and 
 social life was not made for him. Why delay self -protection 
 until the career of misdeed has begun? Such might be the 
 only available procedure if crime were the sole expression 
 of the criminal, but it is sufficiently obvious that there are 
 many other symptoms of the criminal temperament. A 
 man becomes a member of a gang ; he is a vicious fellow, 
 destitute of all moral sense; he pursues most suspicious 
 ways; he has no scruples of conscience; the very idea of a
 
 122 INDIVIDUALIZATION OF PUNISHMENT [42 
 
 moral conscience is foreign to him ; his past, his education, 
 his environment answer for the future. From the patho- 
 logical point of view he has all the signs of the criminal. He 
 is, to all intents, a thief who has not yet picked a pocket; 
 or a murderer, by impulse violent, brutal, and cruel, who, 
 on slight provocation, will inevitably go to the extreme. 
 Why not anticipate the execution of a possible crime? If 
 punishment itself is not to be resorted to, there are at all 
 events protective measures to be pursued and definite steps 
 to be taken. It is not wise to wait passively until a victim 
 is found. When once a crime is committed, punishment 
 becomes a means of defense to prevent the repetition of the 
 crime; so much the more should it be a measure of pre- 
 vention of the first crime. 
 
 To the two groups composing the preliminary classifica- 
 tion of criminals, two others are thus to be added: the 
 class of criminals in advance of the crime or criminals by 
 suspicion, and the class of pseudo-criminals. In the former 
 there is a criminal but no crime; in the latter, a crime but 
 no criminal. To reach a precise individualization in accord 
 with the principles of the system, four varieties must be 
 recognized : the criminals by suspicion who have given 
 proof of their criminality without committing a crime; the 
 criminals lacking criminality, perpetrators of crime who are 
 however not criminal in nature; the criminals combining crime 
 and criminality, but incorrigible; and lastly, the entire class 
 of criminals (with the considerable variety of sub-classes, 
 which it includes) who have shown at once their participation 
 in crime and in criminality but are susceptible to treatment. 
 
 42. Difficulties attaching to the Position of Lombroso 
 
 The serious point in the system of individualization in 
 precise conformity with the principles of the Italian school
 
 42] THE ITALIAN SCHOOL 123 
 
 is the admission of the first two groups, the criminals by 
 suspicion and the fictitious criminals, the former being 
 guilty only of criminality but not of crime, and the latter 
 guilty of crime but not of criminality. That the two con- 
 ceptions have a different range of application cannot be 
 questioned. 
 
 Preventive measures that shall place the criminal under 
 the power of the law before the commission of the crime 
 involve the detection and treatment of suspects. Yet, how- 
 ever solicitous one may be for the social safety, it is far 
 better to run the risk of having thefts or other crimes com- 
 mitted, than to condemn any and every man on the basis 
 of his features merely because nature has given him a 
 jaw, a lip, or a skull that corresponds to one of Lombroso's 
 criminal types. In the life of society, as elsewhere, there 
 are always risks to be run; one must learn how to accept 
 them and to find wherein lies the least social risk. If through 
 fear of crime men are deprived of liberty, where is the ad- 
 vantage? Society must guarantee not alone life and prop- 
 erty but also the means of enjoying them. If to secure life 
 and property the chance is incurred of losing the possibility 
 of enjoying them freely, the social risk incurred is quite as 
 serious as that of the dangers that threaten us individually. 
 Against the latter one may with proper caution come to 
 protect himself; against the danger of an arbitrary author- 
 ity in the hands of the State or the police, one is helpless. 
 Such policy is followed by individuals without initiative 
 or courage, and by decadent peoples. Therefore let us be- 
 ware of introducing a system based upon suspicion, which, in its 
 endeavors to pro vide complete security, constantly exposes men 
 to the serious danger of an accusation upon appearance alone. 
 
 But no less serious is the alternative that no punishment 
 should be imposed if the author of the crime happens to be
 
 124 INDIVIDUALIZATION OF PUNISHMENT [42 
 
 an ordinary individual, whom nature has neglected to brand 
 with the pathological marks that reveal the criminal. Even 
 though there were an infallible means of recognizing the 
 criminal by accident, the man at bottom honest but mo- 
 mentarily led astray or taken unawares, who is not at all 
 liable to a further relapse in the future, the interests of 
 public morality will hardly sanction the example of such 
 patent of immunity in cases of grave offenses that do vio- 
 lence to public sentiment; for the public conscience would 
 thus lose the right to condemn, because the justice by which 
 it is represented considers that it ought not to interfere. Shall 
 murders, thefts, violations of trust, and other serious crimes 
 be regarded as in themselves of slight significance and as 
 morally of no different status than any other act expressive 
 of an individual's true character? In that event a suspicious 
 appearance would be more indicative of criminality than 
 the actual brutal assault upon a victim. The indignation 
 of the people and their stern disapproval of criminal actions 
 would be out of place. It is cowardly and stupid fear that 
 makes one believe that he is threatened, and makes one 
 turn against a suspected enemy, for who knows where the 
 enemy is to be found? Is it the man who plans murder, or 
 the one who seeks vengeance against the murderer? The 
 public cannot decide, and necessarily turns to doctors and 
 specialists who must detect the criminal by pathological 
 symptoms, and then place him under surveillance. The 
 realization of crime becomes only the most terrifying but 
 not the most convincing symptom of crime. The indigna- 
 tion aroused by the crime is an unworthy sentiment due 
 to fear or ignorance. Such appears to be the logical con- 
 sequence of this position. If it should ever be adopted, 
 which is hardly likely, it would destroy the last safeguard 
 of human nature and of common manhood.
 
 43] THE ITALIAN SCHOOL 125 
 
 43. A Third Italian School 
 
 In view of these serious consequences there has arisen 
 an intermediate position, which presents the same point 
 of departure and follows a like determinism, but has as its 
 chief purpose to restore to punishment its traditional char- 
 acter and classic function. This composite school likewise 
 finds its principal contributors in Italy, and has been given 
 the name of "La Terza Scuola" (the Third School). 1 Its posi- 
 tion is centered about the psychological effect of punish- 
 ment ; it aims to justify the retention of its traditional 
 function, that of intimidation and of the prevention of crime 
 by its effect upon others. Thus, in punishing a pseudo- 
 criminal as soon as a crime has been committed, it inter- 
 venes to teach a lesson to such as might be tempted to follow 
 his example, were immunity from punishment assured. This 
 is the principle of intimidation and example. Alimena, a 
 leading exponent of this school, emphasizes this function 
 as the essential and distinctive characteristic of punish- 
 ment, by which it differs from the preventive measures 
 taken against the insane. It may perhaps be doubted 
 whether it is possible to influence the future conduct of an 
 insane man by holding up an example. It is evident that 
 the psychological effect of punishment does not react upon 
 other insane persons. They are immune to such intimi- 
 dation by example. In this respect punishment, in so far 
 as its psychological effects are concerned, whether upon 
 individuals or upon groups, is essentially different from 
 
 1 Principally Carnevale and Alimena. See E. Carnevale, "Delia pena 
 nella scuola classica e nella criminologia positiva e del suo fondamento ra- 
 zionale"; and B. Alimena, "Naturalismo critico e diritto penale " (1892); 
 this is reproduced in "I limiti e i modificatori dell' imputabilita " (Vol. I, 
 1894, in the Introduction). See Vargha, "Die Abschaffung der Strafknecht- 
 schaft" (Graz, 1896), I, p. 216.
 
 126 INDIVIDUALIZATION OF PUNISHMENT [43 
 
 the precautionary measures exercised with reference to the 
 insane. 
 
 But this school upholds not alone the restoration of the 
 psychological function of punishment as an example but 
 its popular function in accord with public opinion. In this 
 respect it is most appropriately called the historical school 
 rather than by its preferred name of the critical school. 1 
 For what is distinctive of an historical school is its allegiance 
 to the evolution of thought, yet not uncritically but in a 
 spirit of thorough conformity to equity as embodied in the 
 law and also to the sense of justice as embodied in the public 
 conscience. It is, then, wholly unwarranted to neglect the 
 popular sentiment that attaches a public disapproval to 
 crime, a sentiment that may be quite unjust if crime 
 is really the inevitable result of an all-conditioning deter- 
 minism, but a sentiment which the criminal law, even in 
 that event, must formally recognize. If this were not the 
 case public morality would be endangered, a very serious 
 matter for social security. This does not imply the im- 
 possibility of conceiving a social morality independently 
 of the conception of freedom, which is the traditional basis 
 of penalty, but such a conception is confined to a small 
 coterie of astute philosophers, such as Guyau, with a nice 
 and discerning sense of analysis and a distinctive nobility 
 of sentiment. Yet it may be admitted that this conception 
 might be popularized and enter into the consciousness of 
 the masses, if it could be freed from the purely philosophical 
 status that men like Guyau give it, or the too exclusively 
 sociological position defended by scholars like M. Tarde. 
 In that event there would appear a new development in 
 the character of punishment. Until then, if the law breaks 
 too brusquely with traditional sentiment, it will endanger 
 1 Carnevale, " La questione della Pena di morte," chap. iii.
 
 44] THE ITALIAN SCHOOL 127 
 
 morality by shattering the foundations upon which it rests 
 before sufficiently establishing the principles to serve as 
 its future basis. Accordingly this conception of the social 
 sanction, in so far as it is the expression of the popular idea 
 of justice, must be retained. Yet this is admittedly a 
 temporary consideration that will eventually give way 
 under changing views. For the present, the maintenance 
 of a proper public conscience remains a second distinctive 
 trait of punishment. Such in rough outline are the prin- 
 ciples of this intermediate school. 
 
 44. The Physical Recognition of the Criminal ; Innate and 
 Acquired Degenerate Traits 
 
 It thus becomes evident how far from acceptance are 
 the extreme consequences of the logic of the Italian school, 
 even by the most confirmed determinists. But the problem 
 turns upon the possibility of an exact scientific criterion of 
 distinction between the true and the false criminal. If we 
 are to make arrests before crimes are committed, there must 
 be positive assurance that we are dealing with a criminal 
 prepared to commit crime; otherwise the liberty of all is 
 threatened. Conversely, if a patent of honesty is granted 
 to a man who may be a thief or a murderer there must be 
 positive assurance that there is no mistake. A character- 
 istic index of honesty as infallible as the criterion of 
 criminality must be available. If such a criterion exists, 
 practically any system will work ; if not, the whole system 
 is nearly or quite worthless. 
 
 Hence Lombroso's criminal type becomes an important 
 factor of his system. The advocates of the Italian school 
 maintain that the varied and increasing discredit of such 
 a type does not affect the fundamental ideas and conclu- 
 sions that proceed from their principles. This may be the
 
 128 INDIVIDUALIZATION OF PUNISHMENT [44 
 
 case in theory, but practically the entire system in general 
 becomes impracticable. Granted the pathological criminal 
 type, all is simple and easy; given such a cranial contour, 
 such a facial angle, and related characteristics, and the 
 classification follows. The diagnosis becomes as unmis- 
 takable as that of tuberculosis. Under such conditions 
 suspects might be arrested and put under restraint, or their 
 cure attempted before they had committed their first crime. 
 Likewise, when a crime had been committed by a person 
 with normal features he would be confidently held exempt 
 from punishment; he would be pronounced a pseudo-crim- 
 inal. The true criminal would be recognized and differen- 
 tiated from the pseudo-criminal, the fictitious criminal, 
 chargeable with crime but not with criminality ; and, like- 
 wise, an incorrigible would be differentiated from one amen- 
 able to reform. Every variety of criminal would be 
 recognizable by his pathological features. There would be 
 a type of the assassin, and another of the thief; a type of 
 the political criminal, and so on. Even the different varieties 
 of assassins would be thus disclosed. Such a discovery 
 would indeed be marvelous. A few measurements would 
 be sufficient to determine the nature of the case. Penal 
 justice in the future would be free from the possibility of 
 judicial error. Even if there were an error in the evidence 
 and the circumstances of the crime and an innocent man 
 were to be condemned, it would not matter; for the fact 
 of having committed a crime would become but an incident. 
 The chief consideration would be to have spotted an in- 
 dividual of a well-defined criminal type. It would be his 
 skull that would make him guilty and not his crime. 
 
 That justice thus administered, however confident of 
 itself, invites other difficulties, is obvious, and is admitted 
 by Lombroso. For if criminality is a chronic pathological
 
 44] THE ITALIAN SCHOOL 129 
 
 expression due to temperament or to an hereditary taint, 
 it is a natural defect; and there is no hope of cure. The 
 temperament as a part of the congenital individual con- 
 stitution is not subject to reform. This appears in Lom- 
 broso's analysis, which regards criminality as a congenital 
 phenomenon of reversion, a survival or reappearance in 
 modern social conditions of the ancestral primitive man, 
 thus making of the criminal a separate variety. Likewise, 
 those unfortunates who display the somatic symptoms of 
 crime have no possible hope of reform. The only policy 
 is mercilessly to eliminate them. They are anti-social; 
 they are diseased elements that cannot be assimilated by 
 the body social. Why not dispose of them as was done with 
 the unfortunate American Indians? This conception of 
 Lombroso's school suggests mediaeval justice, the gal- 
 lows for the very first theft, at all events for thieves by 
 temperament. The theories of the Italian school were in 
 some measure put into practice in the punitive justice of 
 the fifteenth century; and to introduce them now would be 
 but a return to the insecurity and the despotism of those 
 days. 
 
 It is well to recognize that the criminal type, which forms 
 the sole reliance of this system, does not exist; or if it does, 
 it is not as yet determinable by any exact method. 1 Un- 
 questionably no one can deny that pathological abnormal- 
 
 1 For the bibliography see Liszt, "Lehrbuch," ed. 1905, 14, note 2, 
 p. 69; and the authors cited in the following note. In the Revue penitentiaire 
 there will be found some interesting views on one of the editions of " L'Uomo 
 delinquente," Turin, 1897, by M . Granier (Revue pSnitentiaire, 1897, p. 1410). 
 Consult also Frassati, "Lo sperimentalismo nel diritto penale," Turin, 1892. 
 In refutation of the theories of the Italian school, among other books pub- 
 lished or translated into French, see Lucchini, " Le droit penal et les nou- 
 velles theories"; Albert Desjardins, "La m6thode exp&imentale appliquee 
 au droit criminel en Italie" (Paris, 1892); and Vidal, "Principes fondamen- 
 taiix de la pcnulite" (1890).
 
 130 INDIVIDUALIZATION OF PUNISHMENT [44 
 
 ities are found among the majority of criminals. Marks 
 of degeneracy, in part hereditary, in part acquired, are 
 almost always present. But it is not possible to interpret 
 such symptoms as a characteristic sign, infallibly, univer- 
 sally, and necessarily indicative of criminality; and still 
 less is it possible thus to determine particular varieties of 
 criminals. There are born criminals who are thorough 
 perverts, who lack every moral sense and have lost all feel- 
 ing of compassion and uprightness, and who yet bear the 
 normal features of honest men ; and on the other hand 
 there are persons who conform to the degenerate type, who 
 present all the Lombrosian abnormalities, who may be, 
 and probably are, neuropathic and ineffective, but who 
 have not committed crimes and are not likely to do so, and 
 many of whom, if given a favorable environment or a saving 
 moral support, will keep to regular ways and steer an honest 
 course through life. If they reach a third, or even a half, 
 of the normal period of life without having committed a 
 crime, shall they be objects of suspicion solely by reason 
 of their features? 
 
 Moreover such abnormalities are quite as commonly ac- 
 quired as hereditary or congenital. They are due to habitual 
 vice, and in the confirmed criminal they are due to habitual 
 crime; they bear the indelible mark of their professional 
 type. 1 Such stigmata may also be due to the prison-habit, 
 and bear witness to the influence of the environment. As a 
 consequence of like routine and occupation, of like habits 
 
 1 See Baer, "Der Verbrecher in anthropologischen Beziehung" (Leipzig, 
 1893). Consult also Tarde, " Criminalite compared," the chapter on Le 
 type criminel; Puybaraud, "Les malfaiteurs de profession," passim; Dos- 
 toievsky, "Souvenirs de la maison des morts" (third edition), p. 13, seq.; 
 Morrison, "Crime and its Causes" (London, 1891), chap. vii. Consult L. 
 Ferriani, " Delinquent}, scaltri e fortunati" (Como, 1897); and also the 
 excellent chapter by M. July on the organization of criminals: Henry 
 Joly, "Le crime," p. 277, seq.
 
 44] THE ITALIAN SCHOOL 131 
 
 and manners if not of like thoughts, the physical type tends 
 to become the same for all members of the same profession. 
 This is observable in all callings; and crime for certain in- 
 dividuals, sadly enough, is a calling. It thus becomes most 
 difficult to distinguish among pathological marks those that 
 are congenital from those acquired and artificial. 
 
 However, criminality acquired through contagion has not 
 the same pathological standing as innate criminality. In 
 one respect it is more serious, in another less so. In so far 
 as innate criminality remains latent and inactive, there is 
 hope of its elimination; while that which is due to habit or 
 environment may appear with all the violence of an acute 
 crisis. But, on the other hand, this same acquired criminality 
 may often yield to a cure less drastic than does the hereditary 
 form; and even in the case of the latter its origin is not a 
 matter of indifference. Is it a racial survival, or a degeneracy 
 of a more immediate source? In the former case it is the out- 
 crop of a primitive racial trait that reappears in all its origi- 
 nal force; in the latter it is a new racial trait taking the place 
 of the old. Or is the latter hypothesis but a forlorn hope 
 that the regeneration thus affected may bring to light not the 
 primitive man but his remote ancestor as he was before the 
 fall? But if for all these phases of individual criminality 
 the pathological marks are the same, how can we distinguish, 
 at first blush, the type of individual with which we have to 
 deal? How can we avoid confusing all types, the born crim- 
 inal in whom criminality has not yet shown itself even in the 
 form of moral perversity, and the criminal by practice; or 
 again, the hereditary criminal, and the criminal by con- 
 tagion. Where shall we find the decisive marks for such dis- 
 crimination? Indeed they do not exist. The danger lies 
 not in the lack of criminal somatic symptoms, but in their 
 partial presence. For this reason, if one follows Lombroso
 
 132 INDIVIDUALIZATION OF PUNISHMENT [ 45 
 
 and ascribes to them an absolute and exclusive status, the 
 application of punishment becomes a matter of chance, for 
 this type of relation is inherently variable. The relations 
 between the moral and physical are not subject to exact 
 scientific laws, at least not with the instruments and the 
 methods at our disposal. Hence this position is untenable. 1 
 
 45. Other Phases of Italian Penology ; Judicial Diagnosis 
 
 But what is there left of the Italian school if deprived of 
 Lombroso's theory of the criminal type? What remains may 
 be formulated in the following four propositions. First, pun- 
 ishment is but a simple measure of prevention in no way 
 different from the precautionary measures taken with refer- 
 ence to the insane. Second, punishment is not the sole meas- 
 ure of prevention to be taken against criminals, for in place 
 thereof use may be made of a whole series of measures, in 
 part economic or social rather than purely individual, all 
 designed to suppress or to cure latent criminality. Third, 
 punishment is not a penalty but a sort of individual treat- 
 ment, which must not be fixed in advance by law in terms of 
 an abstract crime considered solely as to its objective char- 
 acter. In the practice of medicine it cannot be determined 
 in advance just how long the treatment of a given disease 
 must be followed; that depends upon the patient. Just so 
 in criminology. It is absurd to fix in advance, without 
 knowledge of the individual, the nature and the period of his 
 punishment. The legal assumption that the law alone shall 
 determine the maximum period of punishment has no justi- 
 fication. Fourth, crime retains its purely symptomatic value. 
 Doubtless, if Lombroso's criminal type falls away, there is 
 no occasion to guard against alleged criminals who have not 
 
 1 See Colajanni, "Sociologia criminale"; and a very interesting lecture 
 by M. Prins, "La criminalite et 1'etat social" (Brussels, 1890).
 
 45] THE ITALIAN SCHOOL 133 
 
 committed crimes. But the commission of a crime has no 
 other status than legally to confirm the prognosis disclosed 
 by various symptoms by which are made manifest the or- 
 ganic criminality of the individual. If this is the case, it is 
 absurd to suppose that the list of crimes may be prescribed 
 by law in definite terms. There may be many other abnor- 
 mal actions, many other expressions of criminality than 
 those legally recognized. The judge, well informed in the 
 progress of science, must shape the conception of crime. The 
 intervention of the law in determining the social gravity of 
 crime is intelligible but not justifiable. The crime enters 
 only as one factor in the judicial diagnosis. Accordingly, the 
 judge, who is charged with the diagnosis, should have the 
 right to treat as criminal symptoms such abnormal facts and 
 actions as have a comparable status and may serve as evi- 
 dence of criminality. If the criminal type falls away, it is 
 but an additional reason for substituting for it the aggregate 
 evidence and the symptomatic marks that constitute the 
 judicial diagnosis of criminality. The position tends to 
 abolish yet another principle legally upheld; namely, that 
 there shall be no punishment and no violation unless there 
 be a clause of the law that specifies the offense and prescribes 
 the punishment. In the theory under consideration this 
 amounts to saying that there shall be no penal law, that the 
 penal code may as well be abrogated. 
 
 These several conclusions may be reduced to the following 
 two principles: that crime in itself has only a symptomatic 
 value and serves but to reveal the presence of criminality 
 and the special degree of criminality of the offender; and that 
 punishment is not the penalty of the crime, but a preventive 
 measure to be taken against individual criminality, a 
 curative measure if a cure is possible, a measure of definite 
 elimination if there is no chance for improvement. We are
 
 134 INDIVIDUALIZATION OF PUNISHMENT [46 
 
 thus brought back to the classification of criminals and the 
 measures of individualization. 
 
 We thus reach an individualization of punishment, which, 
 once and for all, replaces the entire punitive procedure pre- 
 scribed by the law according to the outer character of the 
 crime, an individualization adjusted not to the crime but to 
 the organic, latent, or manifest criminality of the individual. 
 This point alone persists; the conception of responsibility 
 disappears, and individualization takes its place; and we 
 reach the order of ideas and the sphere of action of the Italian 
 school. Their definition of individualization becomes merely 
 the utilization of repressive measures to attain the essential 
 end, which is the elimination of criminality either by the 
 moral reform of the criminal, or, if not amenable to reform, 
 by his segregation; and in either case the adaptation of the 
 punishment to the psychological character of the criminal. 1 
 
 46. What Italian Penology has accomplished 
 
 We should be very grateful to the Italian school for having 
 called attention to this new aspect of the individualization of 
 punishment, and for having thus substituted the individualiza- 
 tion based upon the character of the agent for the neo-classic 
 conception of individualization based upon responsibility. 
 Doubtless it should not be forgotten that Wahlberg in 1869, 
 at the same time that he introduced the word " individuali- 
 zation," had already established, with a mass of detail that 
 still retains its importance, the essential relation between 
 the psychological character of the individual and the deter- 
 mination of the punishment. 2 But nevertheless it should be 
 recognized that to give the new principle its full scope, and 
 
 1 See an important chapter of Vargha'a "Die Abschaffung der Straf- 
 knechtschaft," Vol. II, p. 119, seq., and p. 504. 
 
 1 Wahlberg, "Das Princip der Individualisirung in der Strafrechtspflege," 
 Vienna, 1869. Note particularly chap, vi, p. 144, teq., and p. 160.
 
 46] THE ITALIAN SCHOOL 135 
 
 still more its setting and its definite basis, there was needed 
 the solid logical construction of the Italian school. 
 
 This school deserves recognition on still other counts: for 
 having indicated by its inexorable logic where the conse- 
 quences of an absolute determinism lead; and for having thus 
 clearly set forth the nature of the penal law of the future, if 
 ever this practical philosophy shall take the place of the 
 popular and traditional conception of responsibility. One 
 must also be grateful to it for its extension of the conception 
 of the judicial function in penology for having made it 
 clear that a judge is not an automatic distributor of legal 
 punishment but has a distinct part to play in criminal eco- 
 nomics, and that punishment in itself is of no avail but must 
 always be supplemented by the introduction of educative 
 and preventive measures, which in turn must be under the 
 jurisdiction of the judge. 
 
 Finally one should be grateful to this school for the several 
 problems which it has proposed and the several queries which 
 it has raised, and, particularly, for having produced such 
 works as Garofalo's "Criminology," which, for jurists as 
 well as for sociologists, is a most characteristic and sugges- 
 tive production of the penological literature of our times, 
 a work of original scope, and a most useful contribution to 
 the needed reform of our criminal laws. 
 
 We may now take up this new group of conceptions and 
 examine what portions thereof are to be considered false, and 
 what, in the present stage of development, may be retained 
 as sound. 1 
 
 1 To understand the logical position of the Italian school it is well to be- 
 come acquainted with the work of the International Congresses of Criminal 
 Anthropology, organized by followers of this school, the detailed reports 
 of which will be found in the "Archives de 1'anthropologie criminelle et des 
 sciences penales," published under the direction of Dr. Lacassagne, at the 
 Congress at Rome, 1885 (Archives, 1886); at Paris, 1889 (Archives, 1889);
 
 136 INDIVIDUALIZATION OF PUNISHMENT [ 46 
 
 at Brussels, 1892 (Archives. 1892); at Geneva, 1896 (Archives, 1896); at 
 Amsterdam, 1901 (Archives, 1901); at Turin, 1906 (Archives, 1908). The 
 seventh took place in October, 1911, at Cologne. It appears from these 
 several Congresses, particularly that of Amsterdam, that the anthropo- 
 logical point of view which is looked upon, though incorrectly, as the 
 characteristic point of view of Lombroso, at least in its origins, is tending 
 to lose ground even within the Italian school, and to give an ever- 
 increasing place under the influence of Ferri, to the social causes of crime. 
 On this point consult the important account given by Ferri at the Congress 
 at Amsterdam: The Fifth Congress of Criminal Anthropology (Revue Scien- 
 tifique, 1902, p. 331). Likewise at the same Congress a very interesting re- 
 port was given by M . Gauckler to the section of Prisons, followed by a general 
 discussion, and by critical remarks by M. Tarde (Revue penitentiaire, 1901, 
 p. 1458). 
 
 But the Italian school, despite criticism, is unwilling to give up entirely 
 the conception of the bom criminal. On this point see an article by M. 
 Cuche, "L'Eclectisme en droit pnal" (Revue penitentiaire, 1907, p. 944, seq.). 
 
 In regard to the classification of criminals and its most recent literature 
 consult the bibliography in the last editions of the text-book of penal law 
 (Lehrbuch) of von Liszt; and equally the last editions of the standard repre- 
 sentatives of the Italian school. Consult also the excellent work of Sir Robert 
 Anderson, "Criminals and Crime," London, 1907, principally chap, vii, 
 p. 102, seq.; and in regard to Anderson's book, a most important article by 
 Sir Alfred Wills, "Criminals and Crime," in the Nineteenth Century and 
 After (December, 1907), p. 879, but principally pp. 884-894. In answer to 
 this remarkable essay there will be found in the same review (January, 1908, 
 p. 80, seq.), and under the same title (Criminals and Crime), some personal 
 observations of a former prisoner H . J. B. Montgomery in which he 
 expresses somewhat less favorable opinion of the system of indeterminate 
 sentences, and an estimate, which seems very just, of the deterrent effect of 
 long-term sentences. He presents, side by side with these opinions, certain 
 views which seem less correct, at least so far as they touch upon professional 
 offenders. This last point has been answered in a decisive reply by Sir 
 Robert Anderson, in the following number of the Nineteenth Century (Febru- 
 ary, 1908, p. 199), again under the title of "Criminals and Crime." See also 
 an interesting attempt at classification by the administration itself, and as 
 applied to prison government, a most suggestive report of M. Antoine Ballve, 
 director of the Penitentiary at Buenos Ayres (Le Penitencier national de 
 Buenos- Ayres), in the Archives de Psiquiatria y criminologia by Dr. Jose 
 Ingegnieros, professor at the University of Buenos Ayres (May, June, 1907, 
 p. 264, seq.); and finally by Professor Jose Ingegnieros, "Nuova classifi- 
 cazione dei delinquent!," second edition, appearing in the Biblioteca di Scienze 
 Politiche e Sociali (Remo Sandron, Milan). 
 
 See also the second study of Reinhard Frank, " Vergeltungsstraf e und 
 Schutzstrafe "; "Die Lehre Lombrosos" (Zwei Vortrage), Tubingen. Mohr, 
 1908.
 
 ^ 47. The Moral Issues in Punishment. 
 
 48. The Criterion of Normality; Crime and Insanity; Mental and Moral 
 
 Maturity. 
 
 49. Preventive Punishments for the Irresponsible. 
 50. True Punishments for True Criminals. 
 51. A Mediating View. 
 
 52. The Popular and Social Bases of Responsibility; Social Solidarity. 
 53. The Subconscious Basis in Feeling and its Logical Justification. 
 54. Criminality and Motives; Responsibility and the Moral Nature. 
 55. General and Specific Freedom of Action. 
 56. Responsibility, Freedom, and the Will. 
 57. Freedom and the Principle of Causality. 
 58. The Human Will as a First Cause. 
 59. Determinism and the Environment. 
 60. Freedom Essential to Punishment. 
 
 47. The Moral Issues in Punishment 
 
 THE position of the Italian school, however consistent and 
 thorough in construction, yet as a whole, with due consider- 
 ation of its practical consequences, must be rejected. How- 
 ever, a selective analysis thereof will disclose many desirable 
 factors; for it will not do to judge a system wholly by its 
 practical consequences. Such eclectic procedure has been 
 followed by some criminologists to the disadvantage of their 
 position and the discredit of their views. Even Liszt is open 
 to this charge. He declines to accept Lombroso's determina- 
 tion of an anthropological criminal type and rejects as well 
 
 some of the practical applications that seem to follow from 
 
 137
 
 138 INDIVIDUALIZATION OF PUNISHMENT [ 47 
 
 the premises of the Italian school, but he accepts others that 
 involve the same assumptions. 1 This indicates a bias, along 
 with a catholic scientific spirit, in the general trend of his 
 position; but the contour lines of his system seem somewhat 
 wavering. It is not that the conclusions lack clearness or 
 precision; indeed, many of them, as will duly appear, are 
 wholly commendable. But the foundation of this compro- 
 mising system seems uncertain; it lacks a positive and defi- 
 nite criterion of procedure. 
 
 The two principal points at issue may be thus set forth. 
 With the discrediting of Lombroso's criminal type the possi- 
 bility of a preventive criminology that shall legally recognize 
 the criminal in advance of his committing a crime falls to 
 the ground, for any such procedure would bring about a 
 wholly undesirable and impracticable regime of suspicion. 
 Liszt likewise discards a second practical conclusion, namely, 
 the complete abolition of penal legislation. This would in- 
 volve the doing away with all legally prescribed offenses, and 
 consequently with the principle that there shall be recognized 
 no punishment and no crime except by authority of statute. 
 Liszt constantly insists that this principle is a bulwark of 
 individual liberty. To allow the judge at his pleasure to in- 
 troduce new charges is to open the door to caprice and to the 
 privileges of authority, and thus to political influence. This 
 is equally indefensible. 2 
 
 In other respects Liszt accepts the position of the Italian 
 school. 3 He is a confirmed determinist, though many crimi- 
 nologists holding this view remain loyal to the classic school. 
 
 1 Liszt, "Lehrbuch des deutschen Strafrechts," 1905, p. 72, note 5. 
 
 1 Liszt, "Die deterministischen Gegner der Zweckstrafe," 5, Zeits. f. 
 d. get. Sir. W., Vol. XIII, p. 854, aeq. 
 
 1 Birkmeyer, "Die Strafgesetzgebung der Gegenwart in rechtsvergleichen- 
 der Darstelhmg," an interesting article in the Review above cited. This 
 should be read with caution since it presents a biased view.
 
 47] DOCTRINE OF RESPONSIBILITY 139 
 
 Liszt 1 long ago showed that any such compromise is untenable. 
 It can no longer be questioned that in the absence of free- 
 dom there should be no penalty ; for punishment, while 
 something more than a penalty for moral transgression, is 
 nevertheless a social measure, very different from the police 
 regulations which society employs in regard to the insane. 
 Although a normal individual cannot be charged with a 
 thorough-going criminality, yet his crime gives evidence of 
 conduct which discredits, offends, and arouses a strong aver- 
 sion on the part of others, and is thus looked upon as evi- 
 dence of moral obliquity. A man who shows himself equal 
 to the boldest crimes is more than a potential criminal; he is 
 an actual criminal. He proves his moral abnormality. If it 
 is his purpose to steal he will commit murder to accomplish it. 
 
 He is socially antagonistic. Yet this anti-social and abnormal 
 
 
 
 being exercises the same intellectual functions as the rest of 
 mankind. His brain functions normally; he understands, he 
 reasons correctly, but his conscience is wholly abnormal. It is 
 impossible to refer this anomaly of conscience to a physical or 
 morbid disorder. It is a psychological abnormality, inherent 
 in his personal character. If one may speak of his having a 
 soul, using the word in an acceptable symbolic sense, one 
 might say that his soul alone is at once the source of his 
 criminality and the point affected. In this he differs from the 
 maniac, who is blindly and unconsciously a social menace, 
 in consequence of a physiological disorder that makes him 
 not only abnormal but alien to our moral nature. Hence, 
 if the entire inherent difference between the insane and the 
 
 1 See Liszt, principally in the article cited above, " Die deterministischen 
 Gegner der Zweckstrafe." Consult also G. Fulliquet, "Essai sur 1'obligation 
 morale," Paris, F. Alcan, 1898, p. 160, seq.\ and the report of M. Garraud to 
 the Congress of the International Union of Penal Law: "De la notion de la 
 responsabilite morale et penale" (Bulletin de I' Union intern, de dr. pen. 
 Vol. VI, 1897, p. 330).
 
 140 INDIVIDUALIZATION OF PUNISHMENT [48 
 
 criminal is to be referred to the status of the conscience, let 
 us appreciate how different should be the measures employed 
 by society towards the two. The clue to the difference of 
 attitude lies in responsibility. 
 
 But apart from these considerations which are psycho- 
 logical because the source of criminality is psychological, 
 punishment is yet further to be differentiated from the 
 preventive regulations concerning the insane. The two 
 differ necessarily and materially as well as in their psycho- 
 logical purpose, as Alimena has pointed out. Even if we 
 disregard the difference in legal status between the measures 
 of protection against the insane and the measures of re- 
 pression for criminals, the two will ever differ in their effects, 
 and hence in their practical regulation. The measures 
 adopted to cure the insane will never serve to intimidate 
 or to reform criminals. 
 
 48. The Criterion of Normality; Crime and Insanity; 
 Mental and Moral Maturity 
 
 We must now proceed to define responsibility apart from 
 its usual reference to free will. Such responsibility is social 
 or sociological in character; it must also be given a legal 
 recognition which is to serve as the requisite criterion be- 
 tween the insane and the criminal, alike in preventive, cura- 
 tive, and protective aspects. In this connection there seems 
 to emerge a generally acceptable principle. After much 
 discussion upon the power to distinguish between right 
 and wrong it became evident that this criterion constitutes 
 one but not the sole factor of the moral nature; that, in 
 addition, the strength of the will and of the entire moral 
 personality had to be considered. There was thus reached 
 the conception of normality. A normal being is one capable 
 of exercising responsibility. Such normality is especially
 
 48] DOCTRINE OF RESPONSIBILITY 141 
 
 related to the will ; and since the will is determined and 
 conditioned by the motives that make it effective, the 
 normality in question may be referred to the human faculty 
 of determining conduct through motives. Hence the nor- 
 mality ultimately becomes related to the motives them- 
 selves. The normality of a human being consists in his 
 being subject as are other men to the influences of the 
 ordinary motives that regulate conduct and human actions, 
 such as those derived from religion, ethics, and conventions. 
 Not to be subject to such influences, to remain unimpressed 
 by what impresses others, leads at first to an insensibility 
 to these motives, then to a gradual failure to understand 
 them, and finally to a withdrawal from a normal con- 
 dition. Eventually ordinary and normal motives tend 
 to arouse almost reflexly an antagonistic reaction, in all 
 aspects contrary to that experienced by other men. 
 The conduct appears though this is but an appear- 
 ance even in the insane to be reached without motive. 
 In the extreme such conduct approaches complete ab- 
 normality and constitutes mental alienation. The inter- 
 mediate degrees form the transition from responsibility to 
 irresponsibility. 1 This position is set forth definitely and 
 confidently. 
 
 But the whole position may be questioned. Liszt him- 
 self may be credited with its refutal in an illuminating docu- 
 ment. 2 If one may judge by the replies which his manifesto 
 (for such it truly may be called) has aroused, and by Liszt's 
 supplementary article in rejoinder, his strictures seem to 
 
 1 Liszt, "Die strafrechtliche Zurechnungsfahigkeit" (Zeit. f. d. ges. Str. 
 W., Vol. XVII, p. 75, aeq.). An abstract of Liszt's important report will be 
 found in an article by M. Roux, in the Revue penitentiaire, 1897, p. 970. 
 
 2 See the well-known report of Liszt to the Third International Congress 
 of Psychology, 1896, republished by him in his Review under the title of "Die 
 strafrechtliche Zurechnungsfahigkeit" (Zeit. /. d. g. Str. W..Vol. XVII, p. 70).
 
 142 INDIVTOUALIZATION OF PUNISHMENT [48 
 
 have made a profound impression. 1 What indeed is nor- 
 mality in terms of the power of determining conduct by 
 motives? Are the conditions to be found only by path- 
 ological tests? If so, one must make sure that alienists are 
 agreed upon the definition, of insanity. But this can rarely 
 be determined in cases of chronic insanity leading to crime. 
 The question is whether insanity even where there is a 
 pathological basis, such as is revealed in crime and coexistent 
 with it, or indeed culminating or made manifest in a crim- 
 inal action answers to the formula of a chronic state 
 of insanity as traditionally diagnosed. While crime repre- 
 sents an acute and perhaps a wholly transitory crisis, it 
 is no less a pathological crisis. How can the evidence of 
 insanity be found at the time of the criminal action apart 
 from the psychic factors through which the abnormality 
 of the conduct in relation to its psychological motives and 
 impulses is revealed, and especially how can it be ascer- 
 tained when insanity as in cases of moral insanity 
 does not appear until after the decisive action, yet is pre- 
 ceded by a period of incubation during which the brain 
 functions normally, while the moral normality is gradually 
 lost? 
 
 Moreover such cases are not likely to be referred exclu- 
 sively to alienists, nor will purely medical diagnosis be 
 accepted as satisfactory. There are many cases of morbid 
 disturbance giving rise to what may be called partial re- 
 sponsibility, in which, so far as responsibility for crime is 
 concerned, there is no way to determine the degree of 
 cerebral or mental abnormality except by the degree of 
 
 1 Liszt, "Die strafrechtliche Zurechnungsfahigkeit" (Zeit. f. d. ges. Str. 
 W. t Vol. XVIII, 1898, p. 229, seq.). The important study on Liszt's report 
 by Stooss, "Von Liszt's Angriffe auf die Zurechnungsfahigkeit" in the Revue 
 phuUe suisse, Vol. IX, 1896, p. 417, seq., may be read with benefit.
 
 48] DOCTRINE OF RESPONSIBILITY 143 
 
 abnormality of the will in relation to its determining 
 motives. 1 
 
 It must not be forgotten that along with such deviations 
 from normality in the adult there is likewise a normal psy- 
 chological and organic development; and standards of 
 normality must likewise be determined with reference to 
 adolescence. This does not involve a question of a path- 
 ological condition or disease. To determine whether a 
 minor may be considered responsible, he need not be re- 
 ferred to alienists or physicians. The older laws accepted 
 as such a criterion the capacity for distinguishing between 
 right and wrong. This is now regarded as unsatisfactory, 
 for such distinction is a purely intellectual aspect of respon- 
 sibility, while account should be taken of the behavior of 
 the will and the general character. Accordingly the pro- 
 posed laws, like those of the Swiss revision, speak both of 
 intellectual and of moral maturity, which is not by way of 
 definition but of referring specifically to the stage of ac- 
 quisition of psychological normality. It thus appears in 
 general and in particular that psychopathic examinations 
 are warranted in cases of crime only to establish psycho- 
 logical abnormalities, and that the latter alone definitely 
 constitute the fundamental criterion of responsibility or 
 irresponsibility. Moreover this psychological normality 
 is not an original and wholly spontaneous condition, but 
 a slow and progressive one ; when once acquired it may 
 in turn disappear and be lost, and this state of lapse, devi- 
 
 1 On these points useful and pertinent information is found in Gretener, 
 "Die Zurechnungsfahigkeit als Gesetzgebungsfrage," 1897. It is difficult 
 to accept the general position of this work. Its criticism of the proposed 
 system in Switzerland, modelled upon the French system, of a purely patho- 
 logical criterion of responsibility, is interesting, but hardly warranted. The 
 standard work, however, is Maudsley, "Responsibility in Mental Diseases," 
 chaps, v and vi; and his "Pathology of Mind," chaps, vii and viii.
 
 144 INDIVIDUALIZATION OF PUNISHMENT [ 48 
 
 ation, or of complete perversion, has corresponding to it a 
 similar variation in the relation existing between responsi- 
 bility and irresponsibility. Thus there can be no doubt, 
 in case of the hardened, the professional, or the incorrigible 
 criminal, that moral reactions fail to occur, or rather that 
 they take an abnormal form. If the normal behavior of 
 the will is the criterion of responsibility, it is obvious that 
 such normality is less closely approximated in the criminal 
 of the ordinary detached, unassimilated type, than in the 
 minor, or even in the child approaching adolescence. Yet 
 the law declares the latter totally irresponsible, while yet 
 his conscience is awakening and shaping by contact with 
 the morality of his surroundings. The chasm that sepa- 
 rates the adolescent from the adult is less deep than that 
 which separates the hardened criminal from the normal 
 man, in that in the criminal the normal development of 
 morality is replaced by a definite condition of constitu- 
 tional lack of morality. The criminal by natural consti- 
 tution is clearly irresponsible. This was the conclusion 
 reached above from the point of view of freedom and of 
 responsibility based upon freedom of the will. If we dis- 
 regard the conception of free will and hold to the purely 
 pathological and psychological conception of normality, 
 we inevitably reach the same conclusion, as Liszt's logical 
 insight recognized. Without intending to introduce a sum- 
 mary or exact reproduction of the development of his position, 
 we may yet derive from this general impression and sugges- 
 tion of his clear and vivid exposition, the corroboration of his 
 conclusion that the true criminal, the criminal by nature and 
 by psychological condition, is not a responsible being. 1 
 
 1 See the important discussion at the Congress at Lisbon, especially the 
 discourse of M. van Hamel, in the Bulletin de L 'Union intern, de dr. pen., 
 Vol. VI, 1897, p. 468, seq., p. 472.
 
 49] DOCTRINE OF RESPONSIBILITY 145 
 
 49. Preventive Punishments for the Irresponsible 
 
 It must be concluded that the measures to be applied 
 to this class, which we may call punishments for security 
 or elimination, will no longer be punishments in the legal 
 sense of the word but will now become true measures of 
 preventive regulation, analogous to those taken in regard 
 to the insane. Others have recognized this similarity; the 
 psychological effects of punishment and the psychological 
 reactions that normally follow upon the application of pre- 
 ventive measures have much the same specific character 
 as punishment itself. Stooss, for example, emphasized 
 this point. It is indeed plain that punishment, properly 
 so called, produces no effect upon perverted natures; for 
 persons of this type cannot be reached by such measures. 1 
 They require something quite different from the ordinary 
 normal punishment, which is intended to be an instrument 
 of moral and psychological influence. For certain criminals 
 by birth there is no hope on the moral or psychological side; 
 there is nothing to be done but to eliminate them as one 
 would eliminate a dangerous and uncontrollable creature. 
 Their susceptibility to punishment is gone. Children are 
 not amenable to punishment although they are really quite 
 responsible; the constitutional criminal lacks the suscepti- 
 bility because he has psychologically lost it. He has be- 
 come immune to the punitive point of view. 2 
 
 But this immunity to the action of punishment is not 
 necessarily irresponsibility. Stooss is content to say or 
 
 1 Possibly the same is true in regard to the depressing effect of long term 
 punishments. See the article, above cited, of Montgomery, "Criminals and 
 Crime," in the Nineteenth Century, 1908, p. 86. 
 
 1 Compare Stooss in the article cited in the Revue penale suisse, IX, p. 417, 
 seq., and see his able lecture at the beginning of his course on criminal law 
 at the University of Vienna: "Der Geist der modernen Strafgesetzgebung," 
 and published in the Revue penale suisse (1896), IX, p. 269, seq.
 
 146 INDIVIDUALIZATION OF PUNISHMENT [ 49 
 
 at least this seems to be his thought that the repressive 
 measures to be taken against this class have lost their 
 specific character as punishments. For them something 
 else must be adopted, namely, elimination and segregation. 
 But this is not necessarily equivalent to an admission of 
 irresponsibility. The question is one of the definition of 
 punishment; if it is defined by its psychological effects, 
 Stooss is right. Punishments for purposes of protection 
 are not punishments in the ordinary sense of the word ; 
 they must be differently administered since they look to a 
 different end, and their effects are no longer the same. But 
 if punishment is defined by its legal character and its psy- 
 chological basis rather than by effects, and if this basis of 
 punishment is to be found in the idea of responsibility, one 
 may say that every measure, whatever may be its outward 
 form, that is applied to a responsible person by virtue of his 
 responsibility, is a punishment. 
 
 The proposed plan of Stooss admits responsibility for 
 adolescents so far as they have attained the age of responsi- 
 bility, and applies to them either a simple reprimand or 
 educative measures. 1 On the other hand it admits as treat- 
 ment for the incorrigible no other possibility than that of 
 elimination. But they are held to account for being thus 
 intractable; they are responsible for what they are. Ac- 
 cordingly, even these measures, different as they are from 
 ordinary punishments, are still imposed upon them under 
 the name of punishment. In this sense it is that society 
 confines them, as it would a dangerous being whose resto- 
 ration to a normal condition is despaired of, and through 
 
 1 Art. 7 of the first draft. See Stooss, " Expose des motifs de 1'avant-projet 
 de Code penal suisse " (1893), p. 18; and the discussions on this point before 
 the commission of experts. " Verhandlungen der . . . Expertenkommission 
 iiber den Vorentwurf zu einem schweizerischen Strafgesetzbuch " (Berne), 
 Vol. I, p. 49, seq. See also the second revised draft, 1903, art. 14.
 
 49] DOCTRINE OF RESPONSIBILITY 147 
 
 such measure is expressed the social condemnation which, 
 in turn, appeals to the criminal's innate morality, or to so 
 much of it as he retains in common with the inalienable basis 
 of human conscience. It is true that hi terms of their ex- 
 ternal character and their practical administration these 
 measures of protection are not punishments; but they 
 are such in their legal and social status. They thus differ 
 from the measures taken in regard to the insane. According 
 to Liszt's present position they are not different; they are 
 merely applied to criminals who are no longer responsible. 
 As applied to the majority of criminals, the attempt is 
 made to retain in appearance this criterion of responsibility, 
 and so far as possible, to save the conception thereof. 1 But 
 can this be done? Is the conception of normality, which hi 
 essence ever remains the practical basis of responsibility 
 for crime, compatible with the conception of criminality? 
 Assuredly it is so for those accidental offenders whose nature 
 is not affected, in whom there was no real criminality before 
 the crime, and who have acquired none even through the 
 effect of the degradation which objectively is inherent in 
 the crime they have committed. But punishments of pure 
 intimidation are provided especially for this group. Their 
 purpose is to act as deterrent influences, and in so far they 
 likewise become psychologically a modified order of pun- 
 ishment; since those subjected thereto are not supposed 
 to be morally benefited, standing, as they do, in no need 
 of moral reform. Moreover, the measures applicable to the 
 incorrigible class are not reformatory. If such psychological 
 purpose is the characteristic of punishment, these repressive 
 measures are not punishments, since they are only measures 
 
 1 Liszt presented this view to the Congress at Lisbon. Bulletin de I' Union 
 intern, de dr. ptn., VI, p. 471. His answer to the criticisms against his report 
 of 1896 is found in Zeit.f. d. g. Sir. W., 1898, Vol. XVIII, 229, seq.
 
 148 INDIVIDUALIZATION OF PUNISHMENT [50 
 
 of protection aimed at another group of persons. Here 
 also, since the idea of penalty no longer applies, one should 
 speak neither of punishment nor of responsibility. The 
 class concerned are fully normal individuals. The elimi- 
 nation of criminality is not involved. 
 
 50. True Punishments for True Criminals 
 
 There is still to be considered the intermediate group of 
 criminals, presenting a natural criminality which is to be 
 eradicated and is amenable to treatment. Punishment is 
 designed for them. But the term " criminality " refers to an 
 initial foundation of abnormality. Moreover, this acquired 
 and chronic insensibility of the moral conscience, which 
 constitutes the abnormality of the incorrigible, is almost 
 always found as a temporary state and as a more intense 
 and acute condition at the moment of committing the 
 crime, it may be, the one and only crime. Whether or 
 not this is true can be ascertained only by examination of 
 each case as it arises. 
 
 With reference to crimes that degrade and dishonor, as- 
 suming that they do not imply at the moment of action an 
 antecedent state of abnormality, it is clear that in some 
 manner they create such a condition by the very conscious- 
 ness of being abnormal. This comes to the author of the 
 crime as a revelation and remains with him as an obsession, 
 as a feeling of his moral lapse and his social exclusion. 1 Be- 
 fore the crime, the obsession of the deed in contemplation 
 dominates the criminal; he lives in it, he cannot get away 
 from it. After the crime, it is the obsession of memory, the 
 haunting vision of the act committed, and along with it 
 the feeling that through it he has ostracized himself from the 
 
 1 The point is well covered in an admirable address by M. Tarde before 
 the School of Political Sciences, Thursday, January 20, 1898.
 
 50] DOCTRINE OF RESPONSIBILITY 149 
 
 social group of honest persons, that he belongs to another 
 class, that the criminal world alone is open to him, and that 
 he has fallen to its level. At once the dividing line of dis- 
 honor and wrongdoing created by the crime blocks his path, 
 and brings him close to abnormality. Even a single lapse 
 may fundamentally pervert. The habit of crime is not al- 
 ways a requisite for the making of an incorrigible; often a 
 single crime may suffice. It may be that the extreme in- 
 famy of which the individual is capable rises to the surface 
 and overwhelms him; under the shock thus produced his 
 previous morality and the social ties that stood by him as a 
 support are swept away. If, accordingly, in order to apply 
 the appropriate treatment, it is not the act itself that is to 
 be the object of the penalty but the establishment of a state 
 of normality or abnormality, it is clear how readily the idea 
 of constitutional criminality may be extended. It may even 
 be suddenly acquired, but that is of little consequence; and 
 the related conception of abnormality may apply by a like 
 accident all this apart from the conception of punishment 
 or responsibility. It is this parallelism of measures of pro- 
 tection in regard to the insane and measures of punishment 
 in regard to criminals that is being more generally recognized; 
 and this brings us back to the demands and the proposals of 
 the Italian school. In returning to this position it becomes 
 clear that in the realm of moral and psychological normality 
 as of that of free will, as was observed in the neo-classic 
 school, responsibility is denied, if not as a theoretical concep- 
 tion, at least in the individual and concrete form. We are 
 dealing only with the abnormal classes, and these will soon 
 be recognized as the irresponsible classes. It is true that the 
 neo-classic school favored an exemption from punishment, 
 which was a serious matter, while now the conclusion drawn 
 is a treatment by way of penal individualization, and the
 
 150 INDIVIDUALIZATION OF PUNISHMENT [51 
 
 social danger is thus avoided. Yet the view offends the pop- 
 ular conscience, and the traditional ideas of morality and 
 justice are likely to suffer. Far from this being a lesser dan- 
 ger, some believe that the menace to society is thereby 
 increased. 
 
 51. A Mediating View 
 
 It would thus seem that between the extreme solutions of 
 the classic and the Italian schools there is hardly place for an 
 intermediate system resting on a solid foundation and pre- 
 senting a real unity of doctrine. There are certain tendencies, 
 and based thereon, somewhat fragmentary and empirical 
 conclusions, determined by such different interests as those 
 of society and of constituted authority. The construction 
 of a legal system requires something different from this. 
 Clear ideas are needed and a comprehensive system that may 
 serve as a guide for the judge's attitude. Such legal con- 
 struction seems lacking; and for this reason Liszt and his 
 followers do not favor a purely classic system. Yet they 
 do not, and never will endorse certain positions of the Italian 
 school. They hold it as a duty to science, as well as to soci- 
 ety, to attempt a statement of these current and irresistible 
 tendencies. The reconstruction of penal law requires co- 
 operation. The older era had as its point of departure the 
 notion of the "criminal risk," and the era now reaching its 
 completion that of responsibility; the era approaching is 
 that of temebilite formidability. The word arouses dis- 
 trust; it recalls the tracking of wild beasts, and the sugges- 
 tion is hardly acceptable even in reference to criminals. 
 That is why the idea of individualization seems preferable; 
 the criminal is not to be hounded but reformed. Punish- 
 ment is not to be made the instrument of barbarism but the 
 means of social reinstatement, and for that purpose it must
 
 51] DOCTRINE OF RESPONSIBILITY 151 
 
 be adapted to the individual. Simple though this be, it 
 would seem to involve a complete transformation of our 
 traditional system; and law is no more hospitable to sudden 
 revolutions than are other disciplines. History, in order to 
 build solidly, endorses only what is slowly evolved; it re- 
 jects systems that are forced upon it by authority. Is it 
 then possible to adapt a system of individualization to our 
 traditional legal organization? Is it possible to set forth 
 principles and to supply the general outlines within which 
 may be gradually established the legal evolution that has al- 
 ready begun? Such are the pressing questions. Upon this 
 topic each contributor may express himself, albeit modestly 
 and without pretense, conscious that the final word will not 
 have been spoken. If such contributions are conscientious, 
 scientific in type, and serviceable to society, they will 
 strengthen the cause of criminology. 
 
 The problem must be attacked from above. Hitherto a 
 critical review of systems has engaged our attention; we 
 must now attempt a positive construction, not with any 
 immediate finality, for that would be an idle system-making, 
 but in an attempt to weld the several tendencies ready for 
 fusion into an organic whole. Such an organic form deter- 
 mines the life of a doctrine. 
 
 Practically we find ourselves in the presence of two op- 
 posed tendencies. The one, the neo-classic school, reduces 
 everything to the conception of responsibility; the other, 
 the Italian school, to a determinism. By a strange contrast 
 it appears that what is sound in the one system is its principle, 
 and what is false are the conclusions drawn therefrom; while 
 in the other, it is the conclusions that are inviting and almost 
 convincing but the principle deters. To propose a possible 
 reconciliation between the principles of the one and the con- 
 clusions of the other may seem a strange notion; but are not
 
 152 INDIVIDUALIZATION OF PUNISHMENT [ 52 
 
 truths in nature and in thought wrought out in terms of an- 
 tithesis and irreconcilable principles? Therein lies the mys- 
 tery of things. In every field of reality there appears this 
 mystery of the irreconcilable, reconciled in the actual. Such 
 indeed is the fact of life itself. It is the nature of religion to 
 fuse these persistent antitheses and reconcile eternal con- 
 tradictions, to make us recognize that an ultimate account- 
 ing transcends our intelligence but that the facts remain. 
 All this apparent eclecticism would be such in fact, were it 
 not that it is based upon consistent conceptions and prin- 
 ciples and not upon the simple opportunism of conclusions; 
 but for this, one might hesitate to propose so hybrid and 
 so novel a combination. 1 
 
 But upon reflection the contradiction in question is en- 
 dorsed by two sufficiently authoritative sponsors, by pop- 
 ular opinion,' and thus by history, and secondly, by eccle- 
 siastical law, and thus by moral doctrine in its most explicit 
 religious expression. We need not consider whether the 
 basis of ecclesiastical law represents any objective and gen- 
 erally acceptable reality. We have only to consider it as an 
 historical and social document of intrinsic value; in this 
 respect it commands attention. To disregard it would be 
 unscientific and would run counter to approved methods 
 of sociology. 
 
 52. The Popular and Social Bases of Responsibility ; 
 Social Solidarity 
 
 It is noteworthy that the difficulties of the neo-classic 
 doctrine is not due to the fundamental conception of respon- 
 
 1 It cannot be denied that the recent conceptions of individualization 
 in criminal economics have been regarded, at first sight, as very difficult to 
 reconcile with the traditional conception of responsibility. See, for example, 
 an important article by P. Cathrein, S.-J.: "Das Strafrecht der Zukunft," 
 published in Stimmen aus Maria-Loach (1896, p. 461, 489).
 
 52] DOCTRINE OF RESPONSIBILITY 153 
 
 sibility. This conception of responsibility is generally ac- 
 cepted, although somewhat differently interpreted. The 
 false position lies in reducing responsibility to the concrete 
 evidence of moral freedom in action; and particularly to 
 the degree of freedom thus manifested. This claim is indeed 
 strange and quite untenable, and is in formal contradic- 
 tion with the philosophical view of freedom. The objection 
 to the Italian position is not its view of the function of social 
 defense and protection. We can hardly decline to regard 
 such protection as the urgent function of penal law and 
 criminal economics, when each year's statistics shows a fright- 
 ful increase in the prevalence of crime. Moreover this con- 
 ception appeared among the older criminologists, such as 
 Jousse, Muyart de Vouglans, Rousseau de la Combe. They 
 certainly did not deny the validity of the conception of free- 
 dom and responsibility. The classification of criminals and 
 the joint psychological and sociological analysis of crime 
 are wholly commendable. The prevention of crime requires 
 an investigation of its causes. Equally to be approved is 
 the policy of the adjustment of punishment to the degree of 
 the potential criminality and to the temperament of the 
 criminal. If endeavors are to be directed against the in- 
 herent criminality, the criminality resident in the man and 
 not merely that which comes to expression in the crime, then 
 punishment must be made an effective instrument of moral- 
 ization, and not, as at present, a means of corruption. This, 
 indeed, along with the growing demoralization and irreli- 
 gion, is the most important factor in the increase of crimi- 
 nality. No one to-day doubts that these considerations will 
 become the basis of the penal law of the future. But what 
 appears false and supremely dangerous is that fundamentally 
 the Italian school impugns the only conception that, from 
 the point of view of morality, can preserve the conscience:
 
 154 INDIVIDUALIZATION OF PUNISHMENT [52 
 
 the conception of responsibility. It is false to make of pun- 
 ishment something without influence upon the conscience, 
 to make it merely a cruel and terrible weapon in the hands 
 of the State. 
 
 A recent and powerful drama presents the analogy of the 
 ties that hold men together in the social community to those 
 existing between the lion and the jackals who follow him in 
 fear and trembling. When the jackals become strong enough, 
 they rebel. 1 If punishment is to be only the lion's paw 
 pouncing upon its prey, if it is to be but the segregation of a 
 human being, like a wild beast placed in a cage, then here 
 likewise the jackals will rebel; and why should they not? 
 The way to assure public safety and social protection is not 
 to overthrow the conception of responsibility, but on the 
 contrary to implant it in the conscience of the masses and to 
 strengthen it by every remaining vestige of belief. 
 
 The conception of responsibility is a principle to be pre- 
 served at all cost; and social protection is an equally com- 
 manding purpose apparently opposed thereto, but whose 
 interests, while including the whole field, hi the end are seen 
 to require a large consideration of the criminal nature and 
 but little of the crime. 
 
 When we consider the popular conception of responsibility 
 we find therein, as in all conventional notions, many com- 
 plex factors: in part an unconscious and inherited belief, 
 which is the product of the cumulative social psychology 
 of many ages and must on no account be neglected; and in 
 part a real though somewhat slender and shallow conviction 
 that serves as the needed justification of this antecedent in- 
 stinct in favor of responsibility. The social and psychologi- 
 cal foundation of the conception of responsibility is its true 
 source, which a scientific and observational analysis dis- 
 1 De Curd, "Le Repas du Lion" (Revue de Paris, 1897, p. 548).
 
 52] DOCTRINE OF RESPONSIBILITY 155 
 
 covers; but that is precisely what we fail to consider and what 
 the public ignores. On the other hand the formulated reason 
 constitutes the popular conception. It is the abstract and 
 ideal conception with which alone the masses are acquainted. 
 But when we divorce the conception of responsibility from 
 the rational and logical conception which stands in the 
 mind as its support, we subject it to conditions that are op- 
 posed to its sociological foundations. 
 
 The sociological factor in the conception of responsibility 
 is derived from various sources. In his "Philosophic penale" 
 M. Tarde has shown the complexity thereof, which, in the 
 last analysis, turns upon the integrity of certain simple and 
 generic feelings. Yet various opinions have been urged in 
 regard to the sociological origin of the conception of respon- 
 sibility, and doubtless there enters into it, in large measure, 
 certain effects of a social solidarity, or, as M. Tarde puts it, 
 a social affiliation ("similitude"). Such is the feeling of 
 forming part of a common group; the feeling that any one 
 who is capable of responsibility is like ourselves in his 
 psychological endowment and outward circumstances. To 
 combine responsibility and criminality is to begin with so- 
 cial coherence and end with social detachment; it is to imply 
 a feeling of social community and yet admit a disparity. 
 The farther apart men are in race and environment, the less 
 feeling of responsibility they experience toward one an- 
 other. A man in the presence of a member of a wholly 
 foreign race, for an extreme example take a savage, 
 experiences a sense of antagonism, a powerful physical re- 
 action of repugnance. A crime committed under our social 
 conditions by a savage would make the impression of the 
 onslaught of a beast; he would be hounded and assaulted. 
 This would be a popular illustration of the views of the 
 Italian school. All feeling of responsibility would tend to
 
 156 INDIVIDUALIZATION OF PUNISHMENT [52 
 
 disappear, and, in excuse of its position and attitude, the 
 public would resort to a formula that summarizes its natural 
 and unconscious prejudice: "Such a man is not like the rest 
 of us." However, we comprehend and admit that he would 
 appear to his own kind as responsible, for it is the similar- 
 ity of individuals that establishes a mutual responsibility. 1 
 A similar explanation applies to the observed phenomenon 
 that political or religious factions maintain an irreconcilable 
 antagonism to those most closely approaching their own 
 positions, and this side by side with frank sympathy for the 
 supporters of a radically opposed position. 2 The slightest 
 divergence among a very homogeneous group becomes dis- 
 loyalty, and family relations all too commonly present the 
 same situation. 
 
 It is true that in the last analysis this purely sociological 
 factor corresponds to the idea of blame rather than to that 
 of responsibility, inasmuch as the term implies the feeling 
 of a conscious motive power and self-mastery. It is to the 
 latter that the second factor of the personal sense (so well 
 described by M. Tarde) corresponds, which is nothing else 
 than the reflex consciousness of one's personality. This 
 indeed is a decidedly psychological conception, or, if one 
 prefers, one belonging to social psychology. In the relation 
 of responsibility there is a necessary mutual contact. Im- 
 agine a man living alone like Robinson on his island. To 
 arouse in him a sense of responsibility would require that 
 he believe in God. He has no responsibility towards himself, 
 unless he sets up by the side of his real self a fictitious self, 
 
 1 To understand the consistency of this view with the essential founda- 
 tions of society one should read an interesting comment on the conscious- 
 ness of similarity as a social bond, in a thesis by If. Dobresco, " 1'fivolution 
 de 1'idee de droit" (Paris, 1898). 
 
 1 On the community of feeling and the psychological similarity of sects 
 see Sighele, "Psychologic des sectes," 1898, p. 84.
 
 53] DOCTRINE OF RESPONSIBILITY 157 
 
 the ideal self that he ought to be ; and this implies some 
 higher authority towards whom an obligation is felt, such 
 as God or society. Hence responsibility is primarily a social 
 conception; but, this granted, it becomes as well, though 
 only secondarily, a personal conception. It becomes this 
 through its reference to the ego as an independent cause, 
 and to the integrity of our own personality. There is thus 
 involved a relation with others, which is the social aspect ; 
 and a relation with ourselves, which is the individual aspect. 
 This relation of personal origin consists, in essence, in the 
 identity of the self, regarded as it is at the moment, in re- 
 lation to the true and fundamental personality. Nothing 
 is more characteristic of this relation than the very history 
 of the words, in terms of the metaphors and ideas which 
 they reflect. The insane man is called alienated; that is, 
 he has become another, he has become a stranger to himself 
 and to his fellowmen. Such lapse, which excludes responsi- 
 bility in the one state for the other, also applies as between 
 the self of yesterday and the self of to-morrow. There is 
 a break in the personality. When a man thus becomes a 
 stranger to his true self as well as to his fellowmen, he is 
 spoken of as he really is, as a being of another nature with- 
 out psychological contact with his true self; he is no longer 
 responsible. 
 
 53. The Subconscious Basis in Feeling and its Logical 
 Justification 
 
 This hereditary origin of responsibility suggests further 
 considerations and involves other determining factors. 1 Pos- 
 
 1 As factors to be considered one may take into account the sense of 
 social cohesion, and also the necessity of fictitious abstraction in the field 
 of the contest between the instinct of individual morality and the social 
 needs. See an important chapter in Giddings, "Principles of Sociology," 
 Vol. II, chap, ii; and Gumplawicz, "Precis de sociologie," Vol. IV, principally 
 chap, v, 3.
 
 158 INDIVTOUALIZATION OF PUNISHMENT [53 
 
 sibly this group of complex instincts may be reduced to a 
 common point of departure in simple and generic feelings, 
 but that is hardly essential to the present interests. Such 
 a conclusion results from a careful and discerning obser- 
 vation of the relations at a given period and the investigation 
 of these same forces at a previous period, and so on, going 
 back as far as possible in history. They are not part of one's 
 own intimate and personal consciousness. They are not 
 the factors which we feel and of which we are conscious. 
 For us all these things take place hi what it has been agreed 
 to call the subliminal or subconscious phase of mental ex- 
 perience. In accordance with this historical growth, the 
 sense of responsibility had assumed the nature of an instinct 
 long before a rational conception thereof was framed, and 
 in so far as it is instinctive, its purport and bearing are least 
 perceived ; of that we have slight consciousness. But we re- 
 quire some abstract principle to explain the notion as well as 
 seemingly to engender it ; and thus logic enters and per- 
 forms its service. We proceed to give the situation a rational 
 appearance, and when we have constructed the argument 
 we congratulate ourselves upon our discovery. We believe 
 that we have created the responsibility ; or rather, inas- 
 much as the issue is believed to be something real and 
 objective, we conclude that we have discovered it. We 
 take pride in our reasoning that has penetrated to the 
 essence of things and evolved the elements of a living and 
 mysterious reality therein contained. Such is our logical 
 conception of responsibility. 
 
 Objectively these historical and social aspects of the 
 conception of responsibility form its sole constituent factors; 
 in them it has its being. But subjectively, and from the 
 point of view of our inner feelings, they do not exist. For 
 our consciousness responsibility is what our reasoning has
 
 54] DOCTRINE OF RESPONSIBILITY 159 
 
 made it. It contains what we have put into it ; and it is 
 as such that it is operative and effective, and becomes a 
 force and a living reality. A reference to history and soci- 
 ology lays bare the unreality of the abstraction, yet at the 
 same time discloses the skeletal basis of the construction. 
 But to animate it requires something living, the spark of 
 logical reasoning that gives life to every such artificial con- 
 struction and makes of it a principle, whereby it becomes 
 an effective factor and a motive of action. In other words, 
 it is as a subjective conception that responsibility is efficient 
 and becomes a conscious motive force. It is this subjective 
 reality, this mental image and concept, that the penal point 
 of view must consider. The important point is not to deter- 
 mine its origin in terms of its sociological and psychological 
 causes, but to observe how it presents itself to the mind, 
 how it lives and makes itself felt in consciousness. It is the 
 social conception, and not the sociological analysis of respon- 
 sibility, that forms the controlling factor of criminal law. 
 
 54. Criminality and Motives ; Responsibility and the Moral 
 
 Nature 
 
 As a subjective reality the popular mind has but one mode 
 of representing responsibility, and that is under the con- 
 ception of causality. The popular analysis of this conception 
 finds no other basal warrant for responsibility than freedom. 
 This second stage in the development of responsibility we 
 reached some time ago. There is no doubt that the efforts 
 of certain modern scholars and philosophers to establish 
 a precise analysis of responsibility apart from the concep- 
 tion of freedom have not taken hold of the masses. They 
 accept the finality that in the criminal is presented the proof 
 of his criminality ; the public, to hold the criminal respon- 
 sible, requires that he be the author of the crime. He is the
 
 160 INDIVIDUALIZATION OF PUNISHMENT [54 
 
 victim of his criminality but he has not created it. These 
 considerations serve to establish the collective or social in- 
 dignation against the criminal deed as an index of social 
 injury ; but they do not require the reference thereof to an 
 individual wrong-doer. The criminal appears as the em- 
 bodiment of criminality ; and it is the criminality that 
 arouses aversion and indignation. Criminality is above 
 all a menace, but it is also a moral deformity, an anomaly, 
 and a social rupture. We suffer by it morally. But has 
 this feeling any other status than that experienced in wit- 
 nessing a shocking calamity of natural origin, or a tragic 
 death through accident? In witnessing a revolting tragedy 
 there instinctively arises, because of our suffering, an in- 
 evitable impulse to investigate the cause, to determine and 
 remove it. When we find this cause in a being like our- 
 selves, we perceive in him the source of present trouble and 
 the menace for the future ; his inherent perversity is his 
 criminality. We have discovered the moral evil, but that 
 is not sufficient. Just as in presence of a material injury 
 we want to get at the cause, so in the presence of moral 
 wrong we want to trace its original source. It is against 
 this source that our indignation should be directed, for the 
 superficial expression thereof is but the mechanical output 
 of an underlying factor which we must reach. In the last 
 analysis the criminal, as man to man, must admit that the 
 initial cause lies in him, that he himself is the cause. Man 
 is the maker of his own criminality. The determinists say 
 that it is part of his personality and that is what makes him 
 responsible for it. 1 But the public adds that he has control 
 of his personality and of his character, and that the latter 
 alone explains and warrants his responsibility. It is a motive 
 within him, a primary factor of his active and living moral- 
 1 See Merkel, "Lehrbuch des deutachen Strafrechts," 28.
 
 54] DOCTRINE OF RESPONSIBILITY 161 
 
 ity. This idea of a primary cause, which is indispensable 
 to the conception of responsibility, is identified with the 
 conception of freedom. It is part of the logic of the mind 
 and of the inherent justice of things that responsibility is 
 always referred to the series of secondary causes. The 
 public conceives of justice only as that which applies to the 
 primary cause. To hold the agent responsible requires that 
 the series of causes shall stop with him ; otherwise it goes 
 beyond him and the responsibility belongs elsewhere, to 
 society, to God, if one still believes in God. In that event 
 it is not referred to the man. The public stops with the 
 man, the author of the crime ; and in the logic of its notion 
 of justice it must make him the free cause of his acts. With- 
 out freedom there is no responsibility. 
 
 This factor in the logical and ideal construction of respon- 
 sibility is thus the only one to which we' must hold so far 
 as penal law is concerned, since in the minds of the masses 
 it is upon this that the whole rests. For the individual, 
 as for the collective consciousness, moral freedom and re- 
 sponsibility are the same. Penal law may in a sense ignore 
 the instinctive elements in the conception of responsibility, 
 it cannot disregard the rational elements. It is through 
 the ideal and fictitious that men are governed and societies 
 regulated ; and whatever may be said or done, govern- 
 ment and legislation cannot really run counter to factors 
 and phenomena as they exist, for these form the very struc- 
 ture of society. The relation for society as for individuals 
 is the same as that discussed above, in which the real self, 
 as it is, is set up against the ideal self, as it is conceived to 
 be. In every community there is the real spirit which gives 
 it life, and the ideal spirit which determines the goal of life. 
 The government or legislation that disregards the former 
 will find itself in direct opposition to the laws of society,
 
 162 INDIVIDUALIZATION OF PUNISHMENT [ 54 
 
 but if the latter be disregarded the situation will be still 
 more serious. It will bring about not alone conflict and 
 friction within the organism but a radical antagonism. The 
 legal life of society must be in accord with its true social 
 nature. It must also express an adaptation of the ideal 
 personality that directs its impulses and its progress to the 
 demands of the natural laws that control its operations. 
 This should never be forgotten. Nations can at times, and 
 for a short period, exist without bread ; they can never 
 exist without justice. Justice is the very essence of the 
 ideal and progressive life of nations even more than of the 
 life of individuals. The composite school of Alimena agrees 
 to hold to these traditional ideas as they are ; it accepts 
 the principle that society lives in ideals and through justice. 
 The conception of responsibility is bound up with this 
 resulting conception of justice. There is no fear that it 
 will ever disappear. 
 
 But it is important to observe, after having noted the 
 conception which society forms of responsibility, how it 
 practices it and applies it. As an ideal conception we have 
 seen that it rests upon an instinctive belief, the belief in 
 freedom, which is a purely intellectual principle without 
 foundation in experience. How then is this ideal principle 
 brought to a practical actuality? 
 
 It is at once apparent that responsibility as accepted in 
 current thought is primarily a condition or possibility. One 
 says of a man, independently of this or that act of his, that 
 he is a responsible being; and this condition of responsi- 
 bility is not the empirical confirmation of the state of free- 
 dom as we observe it, but a claim of a physical or natural 
 order. It means that his condition is regarded as physio- 
 logically normal. In the popular view which holds to free- 
 dom, the criterion of this condition of responsibility becomes
 
 54] DOCTRINE OF RESPONSIBILITY 163 
 
 the same as for the determinists, who deny it: it is resolved 
 into the idea of normality. It is true that in the one view 
 normality is but a sign or a symptom, while in the other it 
 is fundamental; and therein lies an important distinction. 
 For the determinists, for whom responsibility is but a con- 
 ception of a social or psychological origin, the idea of nor- 
 mality, which is its distinctive factor, is at once the sign 
 and the essence thereof. Back of this appearance no other 
 reality is assumed. Responsibility is made one with normality 
 and thereby becomes fundamentally, as well as apparently, 
 a question of moral pathology. One may thus understand the 
 reservations and hesitations that at present prevail. Even 
 from the pathological point of view can there be a clearly 
 traced distinction between the man of sound mind and reason, 
 who permits himself to b* overcome by a momentary attack 
 of criminality, and the man who allows such a condition 
 to become chronic, and again, between the latter and a 
 man pathologically abnormal ? The distinction between 
 the criminal by nature and the insane is already tending 
 to disappear; and one may anticipate that with the first 
 barrier let down, the second easily follows, for the difference 
 between an acute and a chronic attack lies only in its per- 
 manence and intensity and not in the pathological and 
 psychological nature of the criminality which is displayed. 
 For the public that believes in freedom, normality is the 
 basis of a moral and a legal presumption, the index of a real 
 condition whose probability is assumed. The popular con- 
 ception refers to the personality all the psychological factors 
 which form its nature. To this personality are referred the 
 impulses and passions, as well as the instincts and feelings, 
 so that all these motives of conduct appear like the strings 
 of a delicately vibrant instrument, of which the personality 
 becomes the controlling regulator and harmonizer. Per-
 
 164 INDIVroUALIZATION OF PUNISHMENT [54 
 
 sonality becomes at once the object and the subject of its 
 expression. From this position even the fluctuation of our 
 psychological and moral personality must be ascribed to our 
 nature, considered as active, as itself the subject of its own 
 activity. For the average mind such an hypothesis is neces- 
 sary to account for the complete loss of the moral nature. 
 This may be recognized and conceded when the fundamental 
 tissues through which the cerebral processes function no 
 longer respond to normal perceptions, and, consequently, 
 to the objective reality of things. Such is the case of a 
 pathological alienation due to a constitutional condition, 
 whether inherited or acquired matters little. It is a patho- 
 logical lack of conscience. The common conception of 
 normality, interpreted as a symptom, refers only to a physio- 
 logical normality, any deviation from which must be of a 
 purely pathological character. The man who can think 
 and reason normally remains, according to the popular con- 
 ception, a presumably free agent. Physiological normality 
 becomes a matter for medical confirmation. 1 The abnormal 
 man, for whom this assumption of responsibility fails, has 
 been removed by pathological defect from the sphere of our 
 psychology; and as thus considered the hardened criminal 
 cannot be regarded as an abnormal and irresponsible being. 
 In his case there is a defect of the moral sense and not of the 
 faculty of free decision; he shows a perversion of morality 
 
 1 I recognize that the limitation of this point of view, in that it regards 
 normality in the sense of penal responsibility, implies that the estimate of 
 individuals shall refer to a common environment and a common sociological 
 group; for, before we can speak of an individual normality within the group, 
 there must be a sociological normality, that may serve as a primary line of 
 division, separating groups, and involving responsibility. But this depends 
 upon an expression of the social consciousness, and furthermore tends gradu- 
 ally to disappear as the sociological idea of the special group extends and 
 becomes more comprehensive. Consult GumpUmricz, " Sociologie et Politique " 
 (Paris, 1898), pp. 120-121.
 
 55] DOCTRINE OF RESPONSIBILITY 165 
 
 and not of intellectual perception or understanding. He 
 remains responsible, if not absolutely for his actions, then 
 for what he is and for his condition. This responsibility for 
 a passive condition extends indirectly to the actions which 
 emanate therefrom. Such is the popular verdict. The cri- 
 terion of normality takes on a more fixed and solid founda- 
 tion than it does in the determinist's position, because the 
 public holds fast to an assumed ideal factor, which is pre- 
 sumed to persist, except when abnormalities of a purely 
 moral nature intervene. 1 
 
 55. General and Specific Freedom of Action 
 
 But when once the condition of responsibility is thus es- 
 tablished does public opinion demand a further evidence of 
 responsibility in regard to every action as it occurs? Or to 
 
 1 It was believed that a simple and certain criterion had been found in 
 collective intimidation, the " geneial prevention " of the Germans. It con- 
 sisted in considering as responsible all those who are amenable to the psy- 
 chological effects of punishment, for it is well known that the insane are 
 incapable of being affected by punishment. But the practical difficulties were 
 not solved by this step, for the uncertainty was but canied over to the in- 
 termediate group of the semi-abnormal; and it was no easier to determine 
 whether they could be affected by punishment than to determine whether 
 they were in a condition of physiological and psychological abnormality. 
 On the other hand, this is a return to a theoretical assimilation of punish- 
 ment and the disciplinary treatment of the insane, in the sense that these 
 two orders of treatment differ only in their effects, as Alimena has very 
 clearly shown. But that they are different in effect, and consequently 
 form a different treatment, does not imply that they differ in nature and in 
 status; and when one speaks of responsibility it refers to the justification of 
 punishment. It is reasoning in a circle to pretend that this justification of 
 punishment is present because the effects of punishment make themselves 
 felt, and that the impression may be of a psychological nature. In the two 
 cases the justification of punishment remains the interest of public security 
 without any other distinction. Consult the report of Loffler on responsi- 
 bility: "Der Begriff der Verantwortlichkeit," in the Bulletin de I' Union in- 
 ternationale de droit penal, Vol. VI (1897), p. 388. See also the letter of 
 Loffler, published by Liszt in his answer to the stated criticisms against his 
 report of 1896, in Liszt's Review (Zeit. f. d. Ges. Str. W., Vol. XVIII, 1898. 
 p. 242).
 
 166 INDIVIDUALIZATION OF PUNISHMENT [55 
 
 put the question more precisely, does freedom, as the basis 
 of responsibility, when once assumed for a man in a normal 
 condition, become the further object of a concrete inquiry 
 for every subsequent act? We reply, decidedly not; and 
 this conclusion, though surprising, is not the less correct. 
 The public consciousness in judging an individual act does 
 not analyze this condition of freedom, which it accepts in 
 principle as the normal condition of every man in possession 
 of his faculties; it does not seek the source or the degree of 
 freedom in the act committed; it accepts the vague notions 
 of freedom and responsibility in their bearing upon the proof 
 of the state of normality; it does not inquire into first princi- 
 ples nor analyze the concrete situation. It is not the degree 
 of freedom which the act implies that determines the degree 
 of popular indignation, but the degree of interest or aversion 
 which the agent inspires. This has long been observed in 
 the verdicts of juries. The jury is confronted by individuals 
 perfectly responsible for the actions committed, but it ap- 
 pears that the defendants have feelings quite like those ex- 
 perienced by the ones who are to be their judges, that indeed 
 they are all of like nature, with similar environment and 
 social affinity. Such considerations unconsciously weigh 
 with the jurors, and they acquit. It is the natural principle 
 of responsibility that unconsciously outweighs the principle 
 which is its assumed justification. The instinctive feeling 
 of responsibility determines the application, while the ra- 
 tional conception thereof follows a logical construction. 
 
 In the public mind freedom and responsibility justify 
 the application of penalty. But this popular conception 
 does not serve to determine the degree of punishment. When 
 it comes to determining the penalty, it is the entire man in 
 the totality of his moral nature that must be considered, and 
 not the fragmentary and incidental part of himself that has
 
 55] DOCTRINE OF RESPONSIBILITY 167 
 
 found expression in the crime committed. It is the entire 
 man, body and soul, that comes under the jurisdiction of 
 the popular conscience; and that is why the verdicts of juries 
 so commonly differ from legal opinion. The law must judge 
 the artificial and fictitious person who is revealed at the 
 moment of the crime, that is, the man at a single in- 
 cidental moment of his existence, possibly when he is hardly 
 himself, instead of judging the real man, who can be 
 correctly appraised only in terms of his entire life and his 
 complete personality. 
 
 If then we desire to translate into a legal principle these 
 several factors contributed by popular opinion factors 
 that thus find their source and support in society we 
 may say that the conceptions of freedom and responsibility 
 remain the basis of punishment, but that they do not indi- 
 cate its degree or serve for its individualization. A punish- 
 ment must punish (that is, it must be an expression through 
 penalty of social disapproval), only when the act is com- 
 mitted in a normal condition, when it is the work of one 
 capable of freedom. But the freedom thus assumed is a fact 
 that escapes demonstration and scientific analysis. For it 
 is primarily an abstract description of a natural phenome- 
 non; it is merely the rational justification of a sociological 
 reality, so to speak. Consequently, to apply and grade 
 punishment does not imply that we seek to discover the de- 
 gree of freedom, or that we empirically test the abstract 
 principle. What must be considered is the distinctive char- 
 acter of the delinquent, and the social end to which he, as 
 well as every individual member of society, must be 
 adjusted or re-adjusted. The crime is evidence of social 
 abnormality; the task to be undertaken is one of social re- 
 adjustment. The purpose of punishment is to further the 
 transition from one to the other; and it is thereby that the
 
 168 INDIVIDUALIZATION OF PUNISHMENT [ 56 
 
 interference of society is justified. It is towards this service 
 and function that we unconsciously shape the means. We 
 thus reach the principle, which is that of the classic school, 
 that punishment is based upon the conception of freedom 
 and responsibility; but in application we follow the principle 
 of the Italian school by taking special account of the psy- 
 chological worth of the individual. 
 
 If we wish to summarize these sociological conclusions we 
 observe the following stages of transition in passing from 
 the conception of responsibility to its application: first, a 
 positive belief, a profession of faith in the conception of 
 freedom; second, its empirical identification with the con- 
 dition of normality; and, finally, a concrete application, 
 determined by the potential criminality of the individual, 
 independently of the criminality of the act in itself. Such is 
 the somewhat strange combination and fusion of ideas that 
 we have reached. It proceeds upon the study of the facts, 
 the observation of the social conditions, and the analysis of 
 the popular conscience. 
 
 56. Responsibility, Freedom, and the Will 
 
 Determinism and freedom are alike indispensable to the 
 social life, and supplement one another. Without the law of 
 causality all would be indefinite; and without the consider- 
 ation of the circumstances no one would receive a fair trial. 
 But without the conception of freedom there would be 
 neither morality nor justice as popularly understood. For 
 the fate of rationality and progress is bound up with the idea 
 of freedom. Especially when involving personal sacrifice, 
 the popular view can conceive of endeavor only as taking 
 place under the sway of reason and the influence of noble im- 
 pulses, as an issue of the freedom of effort, exercised under 
 a belief in the value of such striving for the better. To
 
 56] DOCTRINE OF RESPONSIBILITY 169 
 
 put forward virtue as a variety of utility would be popu- 
 larly regarded as a falling off from virtue itself. Freedom 
 and responsibility are words that cannot disappear from 
 common usage without creating an irreparable void in the 
 current stock of ideas. 1 It is not supposed that these terms 
 are popularly used to support practical, logical conclusions. 
 In the popular mind judgments are inspired by a practical 
 determinism that provides the means of anticipating con- 
 duct. But it is by laying bare the layers of cumulative ideals 
 that the nature of social realities is exposed. And indeed the 
 rigid conventions that hem us in by reason of the excess of 
 civilization from which we suffer are likely to be more and 
 more closely drawn. It is well not to interfere with the bal- 
 ance of opposing tendencies. Society as realized, in common 
 with other developments, reflects the mystery of forces that 
 offset one another. 
 
 We accept freedom as a traditional datum without which 
 every legal construction would be in contradiction with pop- 
 ular sentiment. But must we not go further? For in the 
 end, if we make freedom the foundation of responsibility 
 solely because the masses believe in it, is there not danger of 
 a conflict between our convictions and the legal solutions 
 proposed? 2 Obviously beliefs cannot be imposed, and there 
 will always be those who question the notion of freedom. 
 But that is not the point. The question to be determined is 
 whether, despite the appearance of facts (which it must be 
 conceded are all opposed to the notion of freedom), this con- 
 ception remains susceptible of a certain rational proof. That 
 
 1 The most convinced determinists admit that they cannot eliminate 
 from human language and conceptions the fact that the individual considers 
 himself a personality in the independent sense of the word. See Filix le 
 Dantec, "L'individualite et 1'erreur individualist* " (Paris, F. Alcan), 1898, 
 pp. 74, 81. 
 
 2 Consult the report of M. Garraud, cited above, p. 139, note.
 
 170 INDIVIDUALIZATION OF PUNISHMENT [56 
 
 the conception does not come as an axiom is plain, since scien- 
 tific observation does not come upon freedom as a discovery, 
 which it then verifies. But freedom is not withdrawn from 
 every possibility of proof. Otherwise the principle involved 
 would be but a common fiction, almost an hypocrisy, which 
 the somewhat ruthless reasoning of the popular mind will 
 perhaps throw aside as quickly as it accepted it. Hence it 
 is not sufficient, in order to maintain the conception of free- 
 dom and responsibility as the basis of penal law, to declare 
 that it constitutes a traditional postulate, indispensable to 
 the security of social morality; it must be admitted as a 
 conception whose objective reality may be susceptible of at 
 least an approximate proof. 
 
 It is difficult to establish such proof as long as freedom is 
 represented as a state of positive action, as a factor that en- 
 ters to determine the execution of each of our volitions. In 
 this field we perceive only the predominance of feelings or 
 ideas. When we follow an impulse or favor an idea, such 
 impulse or such idea prevails and thus gives the cerebral 
 mechanism its final direction; and this is the very notion of 
 will or of freedom. What is illusory is the exaggeration of 
 the idea of our will when we wish to will; and this idea 
 which is nothing more than an idea, and often the most ty- 
 rannical of ideas, the idea which we form of ourself as a 
 personality acts as an intellectual obsession upon the mech- 
 anism of our volition, in the traditional doctrine the mo- 
 tives or inclinations are the elements of choice at the disposal 
 of the free will. In reality they are the weights that are put on 
 the balance and determine to which side it shall turn. This 
 final impulse and decisive idea is itself derived by way of 
 indirect influences, from the intrinsic nature of our personal- 
 ity and character. It is the totality of our psychic person- 
 ality, unified and consistent, that determines our actions.
 
 56] DOCTRINE OF RESPONSIBILITY 171 
 
 In reality the radical distinction that is supposed to exist 
 between instinctive and other actions applies only to their 
 reflex action upon consciousness, and not to their mechanism. 
 Every movement has the same point of departure and the 
 same mode of operation. Every idea tends to express itself 
 in action; and it is the idea that imparts the cerebral im- 
 pulse and, through it, the muscular impulse. In distinguish- 
 ing between the will and volition the free action must be 
 referred back to the idea. It is the resolution that is free and 
 not the action. But to make sure that the resolution will 
 not change and inevitably give rise to the action, one must 
 suppose a psychological state of obsession persisting in a 
 permanent form. As to the action of the free will upon the 
 resolution, it arises only from the decisive perception that 
 comes to dominate the rest. But in order that this idea, if 
 not of freedom of choice at least of freedom of effort, shall 
 be present, one must suppose in addition that an opposed 
 tendency to the initial impulse has asserted itself, that the 
 idea of a different issue has come to mind; and every idea, 
 as is familiar, tends to express itself in action. Thus it comes 
 to offset the other by the very fact that it exists; however 
 weak it may be, however subordinate the counter-tendency, 
 there exists, through the very fact of there being an opposed 
 idea, a conflict which begins and may grow; for psychologi- 
 cally an idea never exists in a purely passive condition. It 
 is well understood that, if the idea of an opposite action does 
 not present itself at all, and this is quite too frequent in 
 case of crime committed by an habitual criminal there 
 can be no question of freedom. If it is present, it is through 
 the growth of the contrary idea that the notion of "not 
 doing" (restraint) may come to be the dominant force in 
 opposition to the notion of "doing." There thus will occur 
 a moment at which one of the two ideas will be expressed in
 
 172 INDIVIDUALIZATION OF PUNISHMENT [ 57 
 
 an act of will; then the decision is made. Now there can be 
 no doubt from the psychological point of view that this action 
 of a purely internal character is produced through the same 
 cerebral functioning as is the physical act which becomes the 
 external expression thereof. It becomes an impulse under the 
 sway of an idea that has become dominant and has reached 
 the condition of an acute obsession. Every idea that acts by 
 way of the will expresses itself under the form of a momentary 
 obsession which lasts, it may be, an infinitesimal time, but is 
 of the same nature as an obsession of a chronic order. 
 
 In an extreme case it is neither through the volition pre- 
 siding over the physical act nor through the will translated 
 into an inner resolve, that freedom comes to be realized. 
 It is possibly only through the growth of the idea that the 
 idea of willing is evolved by direct action upon the feeling 
 itself; that is, by the personality acting upon itself, upon 
 its intimate and total character. Freedom, if it exists, 
 extends over several stages; it always goes back to the 
 impulsive feelings, to that which serves as the motive forces 
 within us. It is upon our sentiments, feelings associated with 
 ideas, that the effort operates to oppose or develop them, to 
 further or hinder them. We thus always reach this mysterious 
 point of the psychological nature at which consciousness dis- 
 covers the unity of the self, individualized and integrated. 1 
 
 57. Freedom and the Principle of Causality 
 
 However, here the field of scientific investigation stops; 2 
 and beyond, the assertion of the law of causality under its 
 
 1 All philosophic and scientific demonstrations bear on this point. The 
 references are endless; it is sufficient, and in the legal field of punishment 
 one can do no better than to refer to Merkd, "Lehrbuch des deutschen 
 Strafrechts," 19 and 20. 
 
 1 In the excellent book of P. Coconnier, 'THypnotisme franchise," p. 367, 
 seq., will be found a very interesting development of the Thomist doctrines 
 in regard to the functions of the mind and then* psychological operation.
 
 57] DOCTRINE OF RESPONSIBILITY 173 
 
 mechanical form is only a metaphysical assumption which 
 has precisely the same value as the postulate of freedom. 
 If one must choose between these two a priori data, it is 
 by other than scientific or experimental methods that con- 
 viction comes to one. Indeed, when we have reached the 
 very foundation of our personality and of the consistent 
 unity of our nature, we must ask whether this personality 
 constitutes a cause in itself, apart from the physiological 
 mechanism which is its instrument; whether, in conse- 
 quence, we are by the unity of self a primary cause, of 
 a nature different from that of the skin, nerves, and muscles, 
 that transfer the vital impulse. 1 
 
 We unquestioningly admit the influence upon one another 
 of psychic factors; and we may believe that where the 
 realm of the unconscious begins, the chain of causation 
 continues, and returns upon itself at the point of meeting 
 between the psychic mechanism which closes the process 
 and the physiological organism that begins it. But as we 
 remain within the limits of what is conscious and perceived 
 as an intimate sense-feeling, there is no doubt that along 
 with the influence of a physiological order, which we never 
 escape, there is experienced a background of the basal psy- 
 chic individuality to which our moral nature is bound. 
 There is likewise no doubt that this psychological individu- 
 ality is influenced by tendencies by way of the perma- 
 nent path of actions and reactions. But our consciousness 
 thereof reveals it as at once subject and object, as a primary 
 cause acting upon itself. It thus answers to the action of 
 environment, or in theological phrase belonging to another 
 realm, it answers to a state of grace. The question thus 
 returns to the determination of whether in the last analysis 
 
 1 See the two important chapters of the thesis of M. Maurice Blondel, 
 "Y Action," part iii, 2, chaps, ii and iii (Paris, F. Alcan, 1893).
 
 174 INDIVIDUALIZATION OF PUNISHMENT [ 57 
 
 the psychological personality (outside of the purely instinc- 
 tive phase of our nature) is the issue of an absolute and 
 complete subjection to the physiological mechanism, the 
 question assuming that we remain within the field of the 
 conscious and directly perceptible. At this juncture we 
 have passed beyond the field of experience and direct obser- 
 vation. The argument passes to a metaphysical type of 
 explanation and makes the law of mechanical causality, as 
 expressed in unconscious nature, equally the principle of 
 the psychic life in its relation to the organic personality. 1 
 
 This is the type of question which science can answer 
 neither in the affirmative nor in the negative; for it belongs 
 to a realm which science neither commands nor invades. 
 It involves the essential nature of being. Science recog- 
 nizes only phenomena; it does not consider the essence 
 of things. 
 
 However, if this question is answered affirmatively, if 
 this conception of self-sufficient personality is capable of an 
 objective existence, then this personality can exist only in 
 such autonomy, if it exercises a real autonomy over the 
 organism that serves its expression. If a realm other than 
 that of material nature be admitted, it follows that man, 
 as a spiritual being, may be an autonomous force. Bearing 
 upon this position is the able address of M. Sabatier, 
 delivered at Stockholm. 2 While one may not concede 
 all his conclusions, one will readily recognize their high 
 moral and religious import. He sets forth the requisites 
 
 1 On these points see the excellent work of Stammler, " Wirthschaf t und 
 Recht nach der materialistischen Geschichtsauffassung " (Leipzig, 2d edition, 
 1906). See also the account given by Keller in the Kritische Viertaljahres- 
 schrift jur Oesetzgebung und Rechtswissenschaft (1897, Vol. XXXIX, p. 498. 
 seq.). See also a resum6 of Stammler's views in his work on solvency in the 
 German civil code, Stammler, "Das Recht der Schuldverhaltnisse " (Berlin, 
 1897), pp. 14-21. 
 
 * Sabatier, "La Religion et la culture moderne" (Paris, 1897).
 
 58] DOCTRINE OF RESPONSIBILITY 175 
 
 necessary for the transition from a personal autonomy of 
 thought to a religious autonomy, an autonomy, by the 
 way, that remains perfectly consistent with a group of uni- 
 versal dogmatic truths, for the reason that it is compre- 
 hensible only in terms of the inner life of the soul and not 
 of the objective reality of the facts belonging to a differ- 
 ent realm. But clearly such autonomy is meaningless and 
 these conceptions, ably and even scientifically expressed, 
 are but words without other significance than as an abstract 
 construction, unless there correspond thereto an actual 
 natural autonomy without which the rest is but mental 
 illusion and fiction. Such autonomy of the human person- 
 ality is what the conception of freedom should signify. 
 Freedom is the law of whatever evades the realm of physical 
 nature, as causality is the law of whatever belongs to the 
 world of natural phenomena. Freedom is thus the person- 
 ality itself, in so far as it is capable of detachment from the 
 organism that serves as its instrument, and thus comes to 
 live its true life and to influence character and all the latent 
 reserve forces that favor virtue and oppose vice. 1 
 
 58. The Human Will as a First Cause 
 
 Freedom is not necessarily active. It is a condition; 
 the condition of a man in complete self-mastery, a con- 
 dition that accepts and implies an internal determinism, 
 provided that such psychological determinism is eventually 
 connected with a vital cause within the self and part thereof. 
 In the traditional view free will is conceived as a deter- 
 mining influence interposed between the motives and the 
 act itself. Thus the free will operates and becomes the 
 
 1 On the question of freedom and moral responsibility see particularly, 
 apart from the already cited works of M. Fouiltte and of M . Fonsegrive, the 
 suggestive study of M. L6vy-BnM, "L'Idee de responsabilite " (Paris, 1884).
 
 176 INDIVIDUALIZATION OF PUNISHMENT [58 
 
 immediate and efficient cause of the action. In this mode 
 of viewing the matter there is a kind of anthropomorphism 
 derived from the appearance of the action, as though man 
 stepped in to the contest of purely natural causes in order 
 to direct them in defiance thereof ; it is the intervention 
 of human agency. In the psychological conflict there may 
 enter, at the moment of action, an analogous factor, like- 
 wise independent of the efficient psychic elements that 
 form the essential human character as opposed to elements 
 of a material order. Would it not be better to say that 
 freedom assuming its existence as a quality of action 
 is but the psychological personality acting upon itself and 
 influencing motives and inclinations? Since, however, in 
 this analysis of the psychic personality there still remains 
 a bit of purely artificial abstraction, would it not be still 
 better to speak of it simply as an influence upon character, 
 upon the basis of personality, from which are derived 
 motives, inclinations, and impulses. In this way freedom 
 may be said to act upon the determining factors of the will 
 itself. In the mental experience which constitutes the field 
 of science, there appear only these factors in operation, in 
 a series of actions and reflex reactions up to the final dis- 
 charge which determines the act. But when it is a matter 
 of going beyond this into the field of causes antecedent to 
 the primary cause, science can reason only in hypotheses, 
 in terms of a fundamental condition of the physiological 
 organism. Offsetting one hypothesis by another, one may 
 assume, along with this unquestioned relation, a factor of 
 a different nature, whose laws escape the record of scien- 
 tific instruments and whose principle is that of free caus- 
 ality. But precisely because such relation is unquestioned 
 does the condition of freedom, being but a condition, imply 
 variable stages from a complete dependence of the person-
 
 59] DOCTRINE OF RESPONSIBILITY 177 
 
 ality upon the conditioning physiological influences up to 
 full self-mastery, by which the personality, conformably 
 to the laws regulating its existence, transcends this organic 
 mechanism, to develop the free conduct of a transfigured 
 and re-established personality. Such transfiguration of the 
 self may be the issue of tedious labor and long effort, by 
 adjustment to a new environment and to new influences. 
 It may also appear as a sudden and profound conversion, 
 which, like an act of will, gives the impression of being free 
 in the traditional sense. Thus is a personal self regenerated 
 and set free. 
 
 59. Determinism and the Environment 
 
 Obviously freedom does not imply that caprice or break 
 with causality, which the traditional view of free will as- 
 sumed. 1 It is character developing its normal issues, sub- 
 ject to the continued control of the psychological personality, 
 whereby at any moment it is reinstated as an influence 
 and modifies the direction of its own conditioning factors. 
 So it may truly be said of a man that he always acts accord- 
 ing to the law of his character, as one may predict of the poor 
 tree of the Gospel that it will bear only poor fruit. Psycho- 
 logically determinism bears the same relation to freedom 
 as historically it bears to the will. Whether the will be 
 free or not, it is certain that it introduces an incalculable 
 factor in the sequence of social issues, but this factor is so 
 slight that sociology may disregard it and yet become sci- 
 entific; moreover, sociology may make allowance for this 
 variable factor by establishing the laws controlling the in- 
 fluences to which human wills are subject, which, in turn, 
 influence the group of automatic personalities of which 
 
 1 On this point see an able chapter in Print, " Criminalite et Repression," 
 chap, ii, 3.
 
 178 INDIVIDUALIZATION OF PUNISHMENT [59 
 
 crowds are composed and by whose actions history is shaped. 
 A similar relation obtains in regard to the psychological 
 determinism of the will with reference to freedom. In pre- 
 dicting how a certain type of person will behave, one may 
 always disregard the intervention of the incalculable. On 
 the other hand one may estimate the influences that are 
 likely to arouse a reaction of the personality and a free ad- 
 justment on his part to the influences to which he is exposed; 
 and one may say of this adjustment to the influences of the 
 environment what the theologians say of the responsiveness 
 to grace, that there is neither an absorption of one in the 
 other nor a fusion of the two, but a reciprocal interaction 
 through which the intrinsic freedom and integral nature 
 of the human personality persists. 
 
 Freedom, if it exists, is thus merely the power of our ulti- 
 mate resistance, the fundamental possibility of reaction in 
 opposition to external forces; and this power of resistance, 
 while it may be aroused or excited by something from with- 
 out, need not necessarily be conditioned and determined, 
 as is the ultimate discharge of the will, by the impulse that 
 comes to prevail. The psychological personality, though 
 in its essence escaping our investigations, may impose its 
 own law of causality. It cannot be denied that all this 
 amounts to a contradiction. But contradiction is the law 
 of all nature, and this break of the law of causality in passing 
 from one field to another is no more mysterious than its 
 universal application; it is like an endless chain returning 
 upon itself, since it ever supposes a primary impulse origi- 
 nating in a free and independent cause, which arouses the 
 next primary cause, and, through it, all the rest. 
 
 Freedom thus understood and considered, in relation to 
 each of our particular actions, becomes a potentiality and 
 not a necessary actuality. It is through the influence of
 
 60] DOCTRINE OF RESPONSIBILITY 179 
 
 character upon our feelings that we are able to direct our 
 actions, and by virtue of this mechanism one may declare 
 that every act is virtually an act of freedom. But to deter- 
 mine to what degree it really is free is a point that will always 
 escape us. 1 
 
 60. Freedom Essential to Punishment 
 
 The problem of freedom, like the problem of the soul, 
 of which it is but a special phase, and like the problem of 
 God, is one which cannot be demonstrated by reasoning, 
 nor established by scientific induction, but which demands 
 other modes of proof, which are, however, not essentially 
 different from those that serve to convince us of the ob- 
 jective reality of the external objects perceived by our senses. 
 To believe in the latter requires the same act of faith in 
 regard to the data of our external senses as is the act of 
 faith demanded of our inner senses to believe in those other 
 realities, or, let us say idealities, of which freedom is assur- 
 edly a part. 2 
 
 1 In reality this conception differs more from the traditional one through 
 the psychological mechanism of freedom than through its effect. To con- 
 sider an extreme case, if one wishes to take account of the purely theological 
 doctrines, and particularly of those of Catholic theologians, concerning this 
 problem of transcendental metaphysics, one may refer to an important thesis 
 of P. Frins (S. J.), "De actibus humanis ontologice et psychologice consid- 
 eratis" (Freiburg-in-Breisgau, 1897), No. 97, and seq., p. 116, seq. Within 
 the realm of more modern philosophy, characterized by the most advanced 
 scientific spirit, see the excellent work of M. Fonsegrive, "Essai sur le libre 
 arbitre." Consult also Desdouits, "La Responsabilite morale," Paris, 1896. 
 But the two authoritative works are those already cited of M . Fonsegrive, 
 and the older thesis of M. Levy-Bruhl, "L'Idee de responsabilite." 
 
 2 On these points see the excellent preface of M. Brunetiere, to the trans- 
 lation of Mr. Balfour's "Foundations of Belief"; and the articles of M. 
 Maurice Blondel, "Les exigences rationelles de la pensee contemporaine en 
 matiere d'apologetique et la methode de la philosophic dans 1'etude du 
 probleme religieux," published in the Annales de Philosophic chretienne 
 (January, 1896), Vol. XXXIII, p. 337, seq.; and on these articles the study 
 of P. Laberthonnibre, "Le probleme religieux" in the same Review, 1897. 
 See also M. Payot, "De la croyance" (Paris, F. Alcan, 1896).
 
 180 INDIVTOUALIZATION OF PUNISHMENT [ 60 
 
 Instinctive convictions that differ from scientific cer- 
 tainty are equally indispensable; they do not command the 
 universal adherence, the objective certitude, if we may so 
 speak, that attaches to the truths of scientific observation. 
 The certitude thus involved is more distinctively subjective 
 and individual. 1 And this is of capital importance for penal 
 law. It is doubtless sufficient, in order to regard freedom 
 as the basis of penal law, that the idea of freedom shall be 
 susceptible of a proof appropriate to our nature; at all events, 
 let us take this for granted. However, such conviction re- 
 mains a personal issue, even though considered as universally 
 available. For its basis of practical application penal law 
 cannot use a conception that evades scientific investigation 
 and belongs to the realm of faith. 
 
 We thus reach, by a different path, the important truths 
 derived from the study of history and popular opinion. We 
 conclude that the conception of freedom determines the 
 character of the punishment; that, without it, punishment 
 can be neither a penalty nor a measure of social disapproval; 
 indeed, that it falls to the level of the brutal measures of 
 protection taken against wild beasts, against the insane, or, 
 in former days of private vengeance, against the conquered 
 and subjugated enemy. It is a return to barbarism. If then 
 this ideal conception is sufficient to preserve the specific 
 character of punishment, one need not go further. The ap- 
 plication of punishment thus justified as a punishment, by 
 virtue of the possible condition of freedom to which it refers, 
 does not depend upon the degree of freedom ascertained to 
 be present. The degree of punishment is only nominally 
 and legally connected with the responsibility for the act. It 
 should refer practically and effectively to the potential 
 
 1 See an interesting study by Erich Adickes, "Wissen und Glauben," in 
 the Deutsche Rundschau (January, 1898), p. 86, seq., and principally p. 93.
 
 60] DOCTRINE OF RESPONSIBILITY 181 
 
 criminality of the individual. The conception of punishment 
 implies responsibility. One must believe in responsibility 
 in order that a measure taken against an offender shall be a 
 punishment. But the application of punishment is no longer 
 a matter of responsibility but of individualization. It is the 
 crime that is punished; but it is the consideration of the 
 individual that determines the kind of treatment appropri- 
 ate to his case. Responsibility as the basis of punishment, 
 and individualization as the criterion of its application: such 
 is the formula of modern penal law. The era of responsibility 
 is completed; that of individualization is beginning. This 
 does not mean the renunciation of the idea of responsibility, 
 but only the renunciation of the dangerous and puerile fiction, 
 whereby positive and practical applications 1 were derived 
 from merely abstract premises. 
 
 1 All this has already been well set forth by M . Cuche in an able article 
 published in the Annales de I' University de Grenoble, 1897 a valuable au- 
 thority in support of the argument here upheld. Cuche, "De la possibility 
 pour l'cole classique d'organiser la repression penale en dehors du libre 
 arbitre" (Grenoble, 1897). The same ideas have been taken up again by 
 M. Cuche in the "Traite de science et de legislation penitentiaires" (Intro- 
 duction a la science penitentiaire, chap. 1 : les fonctions de la peine, p. 36, 
 seq.). See also a report by M. Cuche at the International Congress of com- 
 parative law held at Paris in 1900 (Revue penitentiaire, 1900, p. 1145, seq.). 
 I note also an excellent thesis by M . G. Mabille, " De la question de discerne- 
 ment relative aux mineurs de seize ans " (Paris, 1898), in which I find, not 
 without a certain personal satisfaction, the support of these views. They 
 are there presented with remarkable clearness and effect. See particularly 
 p. 62, seq., and the conclusion, p. 155. Consult the able works of Dr. Grasset, 
 already cited, p. 98, note.
 
 CHAPTER VII 
 
 RESPONSIBILITY AND INDIVIDUALIZATION 
 
 61. Freedom in the Penal Codes. 
 
 62. Social and Personal Aspects of Punishment: their Legal Recognition. 
 
 63. The Conception of Punishment. 
 
 64. Society's Interest in Punishment ; Crime and Degradation. 
 
 65. The Moral Purpose of Individualized Punishment. 
 
 66. Ecclesiastical Law and Individualization. 
 
 67. Examples in Penance and Clemency for Special Crimes. 
 
 68. Individualization in French Codes: Political Crimes. 
 
 69. Individualization in Deportation. 
 
 70. Individualization in Short-term and Long-term Sentences. 
 
 71. The System of Parole: its Faulty Application. 
 
 61. Freedom in the Penal Codes 
 
 THESE newer conceptions should bring about a revival of 
 interest in the French penal code of 1810, not the penal 
 code as distorted by false modern classicists, but that of 
 the original classicists. This remains the model of its kind 
 and requires but little to put it in line with contemporary 
 progress. The possibility of punishment assumes the poten- 
 tial condition of freedom; such is its postulate throughout. 
 But the determination of what is thus assumed, the penal 
 code does not leave to the decision of the judge. It does not 
 even mention the term " freedom; " it remains outside of, and 
 does not invade penal law. It makes freedom exert its in- 
 fluence from above as a comprehensive conception. It does 
 not make freedom a concrete datum to be legally established. 
 This is why the penal code of 1810 not that of the neo- 
 
 classic theories, but the penal code in its original and best 
 
 182
 
 61] RESPONSIBILITY 183 
 
 form has remained, or has once more become, the most 
 modern of penal legislations. Undoubtedly the penal code 
 of 1810 has serious defects, of which the principal is its 
 assumption of the potential state of freedom in every adult 
 of sound mind, and its further assumption of the identity of 
 freedom and responsibility. The latter it holds by reason 
 of the unity of the will, which it considers as a neutral force 
 entering into each volition; from this it infers that the 
 same crime should carry the same punishment. That is an 
 untenable conception. The assumption of freedom thus 
 conceived stands in the way of the individualization of 
 punishment. There thus arises an incompatibility between 
 responsibility and individualization; and this affected the neo- 
 classic position in its attempt to embody the idea of respon- 
 sibility in the procedures of individualization. But this 
 fiction became inacceptable, and such a state of things could 
 not continue. A return to the penal code was made neces- 
 sary, not to set up responsibility against individualization, 
 but to combine the two. The former, as it appeared in the 
 penal code, was in a measure a fundamental and compre- 
 hensive conception, determining the character of the exer- 
 cise of penal justice; the latter was assigned the part of the 
 active and inspiring motive of the practical organization of 
 punishment and of its application. 
 
 If freedom is thus a condition of the personality rather 
 than an act of will, it is this condition that punishment should 
 accept as a basis and a standard; and the conception of free- 
 dom, far from being set up against an individualization based 
 upon the existence of criminal condition, argues in favor of 
 such process of individualization in its most subjective form. 
 It favors it by its opposition to the view of the older system, 
 in which the responsibility of the individual was made de- 
 pendent upon an abstract will exercised in the crime, a ficti-
 
 184 INDIVTOUALIZATION OF PUNISHMENT [62 
 
 tious personality considered at a single moment of existence. 
 It sets in its place the entire personality in its unity and 
 integrity, viewed as the active force of the moral nature, con- 
 sidered as capable of moral conduct. The distinction is fun- 
 damental. In the newer view the personality qualifies for 
 moral action, and becomes amenable to a precise psycho- 
 logical analysis. 
 
 62. Social and Personal Aspects of Punishment : their Legal 
 
 Recognition 
 
 In this view punishment retains its specific character and 
 thus remains a punishment in the traditional sense of the 
 word, but at the same time it becomes a measure of social 
 protection; and in addition, the penal law retains in part its 
 objective aspect. The purpose is not to substitute a purely 
 subjective examination for the classic system of offenses 
 and legal punishments but to combine the two. It may 
 further be noted that the attitude toward the objective side 
 of punishment is not quite that represented by Liszt's theory; 
 for he considers it as a practical concession to guarantee per- 
 sonal freedom. So long as one holds to the principle of moral 
 freedom the conception of penalty must be retained; and 
 the objective point of view follows directly from the notion 
 of penalty. Under the conception of freedom one is doubtless 
 responsible morally and religiously for what one is, but so- 
 cially one is responsible only for what one does. Freedom, 
 considered as a personal capacity, is correlated with the re- 
 sponsibility for the actions committed, since they are the 
 issue of such moral and mental personality. But socially, 
 it is through his actions that the individual injures society. 
 Society does not control what he is, for it must respect his 
 freedom; it acquires authority over him only through what 
 he does; it has authority only over his actions. Indeed, in-
 
 62] RESPONSIBILITY 185 
 
 dividual responsibility, which is purely moral or religious, 
 must not be confused with social responsibility, which is 
 involved only to the extent to which society controls indi- 
 vidual liberty; and such authority is legitimately applied 
 only through the consequence of an action harmful to so- 
 ciety. But at the same time that an act has been committed 
 which confers upon society the right of intervention, evi- 
 dence has been given of the danger to which one of its mem- 
 bers may expose it; and the penalty, which it is the duty of 
 society to exact for the act done, must be so disposed as to 
 make it a safeguard against future exposure. 
 
 The idea of penalty implies that punishment is the ex- 
 pression of social disapproval, the expression of public con- 
 demnation based upon the disturbance and excitement 
 brought about by the crime. This implies that there is 
 crime and also that the social, and therefore the formal, as- 
 pect of the crime must be taken into consideration. Socially 
 the crime is of account only through its consequences, and 
 not through its antecedents or causes. A murder, whatever 
 may be its cause or whatever the motive that accounts for 
 it, remains a murder so far as concerns the social community 
 in which it has occurred; that is, it remains the supreme 
 violation of personal right. If it is judged in terms of the in- 
 jury effected, the consideration of purpose and motives 
 disappears altogether. In so far as it may become the center 
 of a series of waves of suggestion, to use the apt expression 
 of M. Tarde, it is significant only through its results and its 
 formal status. By virtue of its legal definition it acquires a 
 real status in the law. The law can prescribe and define 
 offenses only in formal terms and must disregard their con- 
 crete setting and their detailed circumstances. But the ap- 
 plication of punishment requires the consideration not of 
 the abstract crime and its legal status, but of the concrete
 
 186 INDIVTOUALIZATION OF PUNISHMENT [ 62 
 
 crime with all its complex psychological factors, which in 
 turn must be ascertained, judged, and punished. At present 
 we are treating of responsibility only from the social point 
 of view, and of the penalty in terms of the social injury. 
 This implies that crime should be defined by its formal 
 status and taxed according to its social value; that is, accord- 
 ing to its objective gravity for society. The meaning of this 
 is definite: for an action to be punishable and justify prose- 
 cution its formal features must correspond to one of the 
 legal prescriptions. It is the crime as defined that alone per- 
 mits prosecution, but it is the criminal act, or rather the 
 agent, the author of the crime, that should be the object of 
 punishment. The objective aspect of crime determines the 
 prosecution, and the subjective aspect determines the pun- 
 ishment. Such is the division to be made between the two 
 considerations. A place remains and should always remain 
 for the objective side of crime and punishment. 
 
 This is essential not alone for the determination and war- 
 rant of the prosecution but equally for setting what is called 
 the legal punishment. The legal punishment is at first a 
 maximum. It is the limit set to the discretion of the judge. 
 The abolition of such upper limit will never be permitted, 
 but we are quite willing, as has been done in the Dutch penal 
 code, to abolish the minimum. The system of ancient law 
 that permitted the judge to go beyond the maximum legal 
 punishment, or rather, to choose among the legal punish- 
 ments by taking the most severe, even though it may not 
 have been a punishment prescribed for the particular crime, 
 would be in total contradiction with the principles of our 
 public law. Thus legal punishment is primarily an upper 
 limit, but it is otherwise significant; it is a social appraisal 
 of the deed considered as a crime; it is a tax. If the penalty 
 aspect persists, the penalty should be proportional to the
 
 63] RESPONSIBILITY 187 
 
 objective gravity of the deed. It must then have a legal tax 
 serving as a scale to measure society's interest in the preven- 
 tion of that crime. Thus there must be a proportionate social 
 indemnity, precisely as a personal indemnity is appraised 
 according to the injury done. 
 
 For this reason, apart from the demands of public law, 
 there must continue to be a scale of offenses with a legal 
 maximum of punishment. But this scale is only a relative 
 one, indicating the maximum for each crime; and the judicial 
 sentence for each particular crime follows a similar relative 
 scale in terms of the punishments. It is not an exact dose 
 that can be applied to the letter; it is a relative and general 
 prescription. It but indicates to the judge in what degree 
 and in what proportion, in each particular case, he should 
 consider the social gravity of the crime. Yet the gravity of 
 the crime is to be considered only secondarily, after the fun- 
 damental consideration which remains dominant in the ap- 
 plication of punishment; namely, that of the individual con- 
 cerned and the degree of morality which he retains. As will 
 appear later, the subjective consideration of the individual 
 determines the nature of the punishment; and the objective 
 gravity of the crime is also to be taken into consideration as 
 one but not the only factor entering to determine the term 
 of punishment. 
 
 63. The Conception of Punishment 
 
 The system of individual adjustment requires that the 
 nature of the punishment should be determined by the 
 nature of the individual. This is the very definition of in- 
 dividualization. Punishments should be differentiated with 
 reference to the classification of criminals, and not to the 
 categories of crime. But the term of punishment will depend 
 also, in greater or lesser measure, and in accord with the rela-
 
 188 INDIVIDUALIZATION OF PUNISHMENT [63 
 
 live scale provided by the penal law, upon the objective 
 gravity of the crime. Such is the accepted compromise be- 
 tween individualization as the criterion for the application 
 of punishment, and its relative objective status, which is like- 
 wise to be retained. 
 
 It is well worth while to note that this combination stands 
 in complete harmony with a legitimate attitude towards the 
 problem of freedom itself. Freedom is not a necessary datum 
 indispensable to the practical construction of penal law; it is a 
 moral conception based upon an individual belief, a datum 
 of the personal consciousness. Thus it bears only upon the 
 conception of punishment and the notion thereof to be en- 
 tertained. It does not bear upon 'ts administration. The 
 administration of punishment considers actual social needs 
 with little concern for our theoretical beliefs. It grows out of 
 criminal sociology. But while criminal sociology operates 
 subconsciously those who apply its laws are influenced by 
 moral conceptions, and it is to such conceptions that punish- 
 ment must be adjusted. To keep in touch with current be- 
 liefs punishment must be given a rational setting. The 
 conception of freedom and responsibility must be retained in 
 the administration of punishment only as a conception, and 
 it must not interfere with the requirements of social protec- 
 tion. There should be organized a protective penalty for 
 society against responsible evil-doers, and a penalty so far 
 as there is responsibility. 
 
 But a further important point remains. The value to be 
 ascribed to the psychological aspect of punishment has been 
 considered; accordingly, in a way, the conception of punish- 
 ment may be exclusively reserved for such measures as have 
 an influence upon the psychic personality. Punishment 
 does not become equivalent to any and every punitive meas- 
 ure based upon responsibility. It comprises only such
 
 64] RESPONSIBILITY 189 
 
 measures as in their application to responsible agents may 
 be directed to those susceptible to psychological appeal; and 
 this may be properly interpreted to include all the results 
 that may be expected to come from punishment. Such was 
 the view of ecclesiastical law, as well as of other systems, in 
 regard to the function of correction and reform. It was also 
 the position of Feuerbach based upon the curious notion of 
 a psychological balance of forces: as punishment was the 
 threat of a given degree of suffering, it should stand in the 
 mind of a man contemplating a crime as the exact balance 
 of the profit which he expects of its accomplishment. But 
 there is yet another aspect of the problem, too commonly 
 overlooked. Before knowing how the execution of the pun- 
 ishment will affect the individual concerned, one must know 
 (for the one depends upon the other), how he will be affected 
 by the very idea of being condemned to punishment; and this 
 question involves yet another, which is but the public phase 
 of the same, namely, what impression is the condemnation 
 going to produce upon others? 
 
 64. Society's Interest in Punishment ; Crime and 
 Degradation 
 
 The future of penal reform centers about this question, 
 for sociology has definitely established the influence of social 
 community upon social adjustment. Adjustment to a so- 
 cially organized group occurs only when there is a feeling 
 of a certain similarity of character; a similarity that is 
 interpreted legally as the conception of equality with the 
 rest of the community. Any deviation from this standard 
 implies the existence of a difference, a more or less radical 
 withdrawal, an exclusion; hence a social mal-adjustment. 
 The psychological effect of a lapse from social standards 
 upon a member of a social group is the loss of the feeling
 
 190 INDIVIDUALIZATION OF PUNISHMENT [64 
 
 of self-esteem, and frequently what is called shame and 
 shame should not be confused with remorse is but the 
 first realization of such personal lapse and the effect thereof. 
 No character can resist it. Society may pertinently say: 
 Whoever is not with me is against me. There are ever two 
 groups: the pros and the cons, those on the one side and 
 those on the other, organisms of a different structure but 
 a like power. One may belong to the party of the opposition 
 by natural tendency, or, possibly, by the emotional effect 
 of the first offense. But if it happens that neither one's 
 natural attitude towards crime nor the reaction subsequent 
 to the actual commission of a crime is a sufficient protection 
 against crime, there remains yet another alternative, a last 
 .chance of losing or of saving one's soul, the choice of re- 
 maining a useful member of society or of passing over to the 
 enemy's camp. This choice depends upon the psychological 
 effect of punishment ; to which camp will punishment send 
 one? 
 
 Now in this connection one may indicate three or four 
 tendencies corresponding to various historical aspects of 
 punishment. The first belongs to the primitive theory of 
 criminal risk. What we look upon as crime appeared in 
 primitive conditions as a normal condition of life in which 
 one simply took his chances. There was no degradation 
 in crime. A cyclist who runs into and injures a pedestrian 
 pays the damages, and is not considered disgraced. No 
 one would think of him as wicked. The same is true of the 
 soldier of the period of private wars. He agreed to a settle- 
 ment and paid the Wergild; and clearly the payment of 
 the Wergild did not disgrace. Ecclesiastical law, at the 
 very time when the conception of sin and responsibility 
 was spreading, presents a conception, which, along with 
 considerable differences, has points of resemblance with
 
 64] RESPONSIBILITY 191 
 
 the former view. Crime constitutes a fall, but a fall that 
 does not degrade. Christianity has impressed upon the 
 world the notion of sin, which it has made the normal con- 
 dition of humanity. We all are more or less sinners, and 
 among those fundamentally much in the same condition, 
 sin can arouse only commiseration and pity; it does not 
 arouse aversion. The sinner is a brother to be helped; he 
 is not an outcast from the community. Heresy alone can 
 break the common tie. As between those united in a com- 
 mon faith, a lapse, even a crime, does not degrade. One 
 should chastise, and chastise ruthlessly; but punishment 
 implies the certainty of reinstatement and not an ulti- 
 mate ruin. And in communities that have retained some- 
 thing of this monastic spirit, it is indeed strange to observe 
 the feeling of tolerance for wrong-doing so long as faith is 
 professed. Many instances of tolerated fraud thus find 
 explanation, but this circumstance proves as well the per- 
 sistence of the curious social fact that crime in itself does 
 not degrade. 
 
 The association of degradation with punishment appears 
 in the rationalist theory of responsibility. If every offense 
 is the result of a free but perverted choice, punishment be- 
 comes the chief clue to the sinners of this world. It serves 
 to mark the division between those of evil intent and those 
 regarded as righteous. For the former, penalty becomes 
 a burden of shame and disgrace, which should be appor- 
 tioned to the criminal intent; and the intent may be regarded 
 as the free expression of evil, since it is the issue of a choice 
 made in full and absolute freedom. And since wrong-doing 
 is represented as a social offense and not as a personal sin, 
 the conception of fraternity and community in sin disap- 
 pears and gives place, somewhat as depicted by primitive 
 painters, to the idea of a separation between the righteous
 
 192 INDIVTOUALIZATION OF PUNISHMENT [ 65 
 
 and the vicious, between those accepted by society and 
 those rejected. Such is the army of the wicked that like- 
 wise forms an organized portion of society, scattered, it is 
 true, but for this reason more elusive and more dangerous. 
 The new theory of temibilite (formidability) is hard- 
 ly more respectful of the self-esteem of the fallen man. 
 Its classifications may indeed recognize the possibility of a 
 criminal being an honest man who is the author of a mate- 
 rial crime without being the embodiment of criminality. In 
 his case punishment becomes, as in the Salic law, the pay- 
 ment of a risk incurred. In a theory that does not believe 
 in freedom in any form there is no place left for self-esteem. 
 To retain the feeling of self-esteem there must be self-control 
 and a consciousness of will and freedom. On the other 
 hand, without freedom there is no hope of a return to virtue; 
 and thus arises the tendency to recognize only criminals 
 by nature, to regard them ail as beset with an incurable 
 criminality, as belonging to the lost. They form a part of 
 the increasing army of the wicked, yet further increased by 
 the moral effect of the hopelessness here attaching to crim- 
 inality. It becomes an indelible taint. The criminal is of 
 another race; he is the savage come to life again, and is to be 
 hounded without mercy; he is the extreme anti-social being, 
 wholly refractory to the requirements of social life. 
 
 65. The Moral Purpose of Individualized Punishment 
 
 In a view that combines responsibility and individual- 
 ization these trends of opinion are likely to be modified in 
 deference to traditional institutions. Thus a conditional 
 sentence like parole carries with it the benefit of the toler- 
 ance attaching to the "penal risk" view of crime. Parole 
 is just such a punishment that does not degrade, for it was 
 devised for that purpose. The same applies even more
 
 65] RESPONSIBILITY 193 
 
 strongly to deterrent punishments and merely technical 
 penalties, which are imposed upon offenders with no crim- 
 inal tendency. At the other extreme there is the army of 
 hopeless outcasts, unfortunately but undeniably on the in- 
 crease. But it is likewise true that so long as we believe 
 in freedom and in the value of a personal effort, we shall 
 hold to the hope of a possible regeneration. We do not 
 close the door upon any one for whom a return to the con- 
 ditions of social life is possible. And this possibility, in the 
 absence of a proof to the contrary, we may accept as a defi- 
 nite principle analogous to certain presumptions of civil 
 law. Lastly, there is the rank and file of the army, the 
 battalions of true delinquents, susceptible to remedial pun- 
 ishments. They are not to be discouraged nor degraded; 
 their sense of personality and self-esteem is to be restored 
 and not destroyed, for self-distrust leads to vice. It should 
 be recognized that the critical point lies in the type of 
 individualization. A severe punishment imposed without 
 probing the offender's conscience may in some respects be 
 considerate of the personality, but at the same time it is 
 also considerate of vice and criminality. It is as though 
 society, indifferent to the past immorality and wickedness 
 of its enemies and exploiters, should say: "Let them pay 
 and return to their careers." Such a system encourages 
 crime; it is made for those who scoff at virtue and boast of 
 vice. Such self-esteem it is not important to preserve. On 
 the contrary punishment must carry with it something 
 deterrent, by virtue of that social force that differentiates 
 individuals by their character, and self-esteem of the type 
 expressed by the vanity of vice will in that event find itself 
 decidedly at a discount. As, ordinarily, criminals of this 
 type, even when susceptible to reform, have hardly any 
 other form of self-esteem, the loss thereof is not to be re-
 
 194 INDIVIDUALIZATION OF PUNISHMENT [ 65 
 
 gretted. But to build up the other and true self-esteem 
 that consists in believing oneself fundamentally and con- 
 scientiously the equal of honest persons, requires the revival 
 of the feeling of virtue; and such these criminals no longer 
 possess. It is not the brand which they bear that affects 
 their moral character, but the discipline to which they are 
 subjected that alone can restore a sense of virtue and of 
 self-confidence. 
 
 A reformatory punishment imposed upon the weak and 
 the victims of our extreme civilization can hardly be effec- 
 tive except through the feelings of deep compassion that 
 were appealed to by the ecclesiastical law. A man who could 
 be saved was not treated as an outcast. His regeneration 
 was to be sought; he was not to be abandoned to the army 
 of the wicked, but was to be reinstated among the honest. 
 Society was not to brand him with an indelible stigma. 
 Upon such basis rested the fellow-sympathy that avoided 
 degradation and a definite social exclusion. In a system 
 based upon free will, that regards every crime as a freely 
 made compact with evil as formerly it was made with the 
 devil, every crime becomes a permanent mark of disgrace; 
 but a system admitting a more general freedom, without 
 assuming the concrete freedom of any given act, approaches 
 this religious fellowship, that believed in a like temptation 
 for all and assumed for all a like capacity to be free. The 
 sense of social estrangement is less marked. There remains 
 a bond of attachment to the social organism in the feeling 
 that all of us may qualify for a life of freedom, and no one 
 need necessarily remain in a career of crime and in the con- 
 ditions that lead to it. The restoration to freedom requires 
 an appeal to the inmost nature and its liberation through 
 punishment. Crime seems thus conditioned by the deter- 
 minism of human fate while yet it begins with freedom of
 
 65] RESPONSIBILITY 195 
 
 action. It is due to this determinism that there arises 
 a fellowship in moral unworthiness that may develop to a 
 fellowship of pity. Yet the fundamental freedom of action 
 and character inspires the hope of an ultimate regeneration. 
 This very hope forms a bond of attachment to society, which 
 punishes but does not exclude. Thereby it makes possible 
 the restoration of self-esteem, for the punishment that is 
 to restore must not debase. Punishment should make a man 
 feel his moral but not his social fall, and the society that 
 inflicts it should express a moral condemnation that does 
 not definitely degrade or cut off. The psychological effect 
 of punishment should be directed to the future and not be 
 obsessed by the past. The constant thought of remorse 
 and, still more, of shame, becomes the greatest hindrance 
 to individual regeneration. Faith in the future remains 
 the sole source of initiative and moral progress, even for 
 the fallen, indeed, especially for them. 1 Such faith leads 
 to a more comprehensive view of freedom. The concrete 
 loss of freedom in a given crime should not involve a per- 
 sistent and oppressive retrospect; the surviving fount of 
 freedom of every spiritual nature should direct endeavor 
 to the future. Such is and must be the place of the psycho- 
 logical effect of punishment in a reformed penal law. Such 
 reform involves a re-education of public opinion, and to this 
 end the practical application of punishments based upon 
 a strictly psychological classification will contribute effec- 
 tively. For such application the Berenger law may success- 
 fully serve as an introduction. 
 
 1 It is pertinent to apply the fine words of St. Paul : "But one thing I do, 
 forgetting the things which are behind, and stretching forward to the things 
 which are before, I press on toward the goal unto the prize of the high call- 
 ing." The Epistle of Paid the Apostle to the Philippians, iii, 13-14. One 
 cannot better emphasize the duty to forget the past and to consider only the 
 future.
 
 196 INDIVIDUALIZATION OF PUNISHMENT [ 66 
 
 66. Ecclesiastical Law and Individualization 
 
 We have still to review the position of ecclesiastical law 
 upon these issues, considered in its historical role. The 
 association of the idea of penalty with that of social purpose 
 may be reached through a sociological analysis of popular 
 conceptions. May it not have like relation, despite the 
 radical difference of approach, to ecclesiastical law? To 
 find that such is the case would be of importance, and not 
 merely in the interests of historical truth. It would appear 
 that ecclesiastical law has everything to gain by detaching 
 its origins from a certain spiritualistic philosophy with 
 which it is affiliated, yet which is fundamentally an aspect 
 of rationalism. 1 However, the guardianship of the good 
 name of the ecclesiastical law belongs to those officially 
 qualified to express an opinion. We are concerned only 
 with historical evidence. 
 
 And first of all, may we not recall, in connection with the 
 popular as well as the traditional conception of freedom, 
 the very perplexing parable of the Gospel? I refer to that 
 of the seed cast upon good soil, that increases of itself by 
 virtue of the soil that has received it, without personal effort 
 and, as it were, in complete unconsciousness. There comes 
 a time when the plant has grown and become a tree with 
 spreading branches wherein rest the birds of the air. 2 Where 
 then does individual effort enter? Where does freedom, 
 as a positive act, come into play? Where shall we observe 
 the appearance of responsibility for the good issue that re- 
 sults? The original personality is the sole explanation; it 
 alone creates, by a force inherent in its nature that suffers 
 
 1 In regard hereto, and under a title that explains itself, see a curious 
 article of M. I' Abbe L. Picard (of the diocese of Lyon), "De 1'insuffisance du 
 spiritualisme," published in the Revue du Clerge franyais, 1897, p. 481, seq. 
 
 * St. Mark, iv, 8, 26-28, 31-32.
 
 66] RESPONSIBILITY 197 
 
 no interference of an alleged free will. The soil is well pre- 
 pared; nothing remains but to deposit therein the seed that 
 is to thrive. The sower has done his work, the germ de- 
 velops by virtue of its inherent fertility. It is a purely 
 organic process. Freedom and responsibility, if they have 
 any part in the personality, are a part of the whole in its 
 unity, and, let it be added, in its variations and successive 
 transformations. But we do not observe them in each par- 
 ticular action. The actions taken individually are the fruits 
 of the tree, good if the tree is good, bad if it is bad. 
 
 In a doctrine of this kind man does not necessarily appear 
 as free in his actions but as free in the development of his 
 moral personality. We do not know whether freedom is 
 the power to act independently of every antecedent con- 
 dition, but for man it is the power to act on the basis of his 
 moral nature, and to be constantly active in transforming 
 and improving his personality, and thus in determining, 
 through this sequence of causes, the resulting actions. Free- 
 dom may be the power to prepare the soil, to make it good 
 or bad and to conserve it as the depository of the good, 
 which according to the Gospels is made a part of one's an- 
 cestral or rather divine inheritance. 1 But the soil once 
 prepared, nature asserts its rights and the fundamental 
 law of physical causality prevails. Freedom prepares the 
 soil, determinism receives the seed and makes it fruitful. 
 This is our first consideration. 
 
 So far as responsibility appears in the Gospels it is never 
 attached to an act considered in itself as the product of the 
 freedom of choice, but as an expression, a condition, what 
 we now call a state of mind. The expression appears in St. 
 Bernard: "Et enim libertas habitus animi liber sui." 2 From 
 this results the triumph of a state of faith. The predestina- 
 1 St. John, i, 4, 9. * See above, p. 40, note 1.
 
 198 INDIVIDUALIZATION OF PUNISHMENT [ 66 
 
 tion of the apostolic calling has no other foundation. It is 
 the reward of an inner latent faith. 1 The same holds of the 
 miracles of the Gospels. They are the reward of a positive 
 and efficient faith, 2 and to this state of faith, as revealed in 
 the Gospels, there corresponds a state of grace with the 
 dogmatic interpretation ascribed to it by St. Paul. 3 Per- 
 sonalities, not actions, are to be rewarded or punished; and 
 if at times the act appears as the object of penalty the sin 
 committed rather than the state of sinning this must be 
 looked upon as the expression and issue of a corrupt per- 
 sonality in revolt against the spirit immanent therein. Is 
 not theological teaching merely the development of these 
 views? A state of grace or a state of sin makes the distinc- 
 tion between the righteous and the wicked, and good or bad 
 deeds are significant only as the consistent expression of our 
 inner nature. The theologians tell us that sin, as such, with- 
 draws from God; it leads to death. This is doubtless true; 
 but even within the theological position there has not been 
 sufficiently considered the subjective factor necessary to 
 bring about such withdrawal. This factor consists far less 
 in the free yielding to the circumstances of the action than 
 in an open and conscious revolt against a part of the divine 
 inheritance. It is of this human element of regeneration 
 that St. Paul speaks as living and moving within us, from 
 which the soul withdraws when, by a critical act, it rests in 
 the common human element of sin. 4 Is not this the true 
 basis of the theological view? 
 
 Such is the general impression of the situation, doubtless 
 
 1 St. John, i/35-49; iii, 19-21; v. 88-44; compare with viii, 34; St. Mark, 
 ii, 5; v. 34; vii, 29; x, 52; St. Matthew, viii, 10-11; ix, 2, 29. 
 
 1 St. Luke, v, 5, 12-13; St. John, iv, 50; St. Matthew, ix, 22, etc. See 
 preceding note. 
 
 * See the Epistle to the Romans, especially chapter vi. 
 
 4 St. Paul: Epistle to the Romans, vii, 18-24.
 
 67] RESPONSIBILITY 199 
 
 not to the professional theologian with his acceptance of the 
 objective reality of theological truths, 1 but as it appears to 
 one who looks upon theology from the historical side, in its 
 relation to intellectual movements and to the influence which 
 it has exercised upon the growth of popular opinion. No one 
 with a sociological interest has the right to neglect this his- 
 torical aspect. 
 
 67. Examples in Penance and Clemency for Special Crimes 
 
 If we set aside theology, which in this respect forms a sort 
 of spiritual psychology, and take up the practical organiza- 
 tion of society, we shall see that ecclesiastical law is but the 
 development of these several conceptions. The primitive 
 law of the church is comprised in the penitential reports; 1 
 and these distinctly approach the position of the Salic law, 
 yet with this difference, that in place of the Wergild there 
 are years of penance, corresponding to each of the deeds con- 
 cerned, so many years of penance, as it were, instead of the 
 pieces of gold exacted by the Germanic laws. The one re- 
 places the other. It is familiar that later, with the practice 
 of indulgences, the pieces of gold again replaced the years of 
 penance. From the rationalistic position of the freedom of 
 the will it is natural enough that this should seem scandal- 
 ous. But does not this throw light upon the purely super- 
 ficial character of these penances? The fine thus imposed 
 
 1 As an example of the intrinsically theological position expressed dog- 
 matically, see the thesis cited above by P. Prins, "De actibus human is," 
 p. 116, aeq. 
 
 2 On the Penitential Books, see Viottet, " Histoire du droit civil frangais," 
 last edition; Schmitz, "Die Bussbiicher und die Bussdisciplin der Kirche"; 
 Henry C. Lea, " History of Auricular Confession and Indulgences in the Latin 
 Church," Philadelphia, 1896; and a remarkable study by M. A. Baudinhon, 
 on the subject of the preceding work, in the "Histoire de la Penitence a 
 propos d'un ouvrage recent," which appeared in the Revue d'histoire et da 
 literature religieusea, Vol. II, 1897, p. 306 and p. 496.
 
 200 INDIVIDUALIZATION OF PUNISHMENT [67 
 
 is wholly objective and relative, and consequently nominal; 
 it corresponds, in a somewhat symbolical way, to the ob- 
 jective gravity of the offense and to the reprobation it is 
 likely to arouse. The penance has the simple purpose of ex- 
 acting payment to make good the offense and to require 
 its confession by the offender. The question of the con- 
 science and that of the moral status of the action is a very 
 different one. In this respect the action is but secondary; 
 the paramount consideration is the return to a moral state, 
 the substitution of a state of grace for one of sin. To that 
 end it is necessary that punishment heals, as the ecclesiastical 
 expression puts it, or as we now say, reforms. The end to 
 be attained is the moral reform of the sinner, and in the 
 primitive church the psychological effect of penitence was 
 relied upon to effect this. At a later day, in consequence of 
 moral laxity, alternates and substitutes were found of a 
 more tangible kind, and the almost nominal fine was retained 
 only to mark the relative gravity of the action. It was re- 
 placed by prayers, pilgrimages to the Holy Land, and alms- 
 giving. Still later, indulgences were introduced in the form 
 of symbolic recognition of what was originally an objective 
 penalty. 
 
 Let us take an example, that of infanticide, that will well 
 illustrate the subsidiary status of the objective aspect, and 
 the dominant influences of personal subjective considera- 
 tions. It is generally acknowledged that it was an advance 
 in the philosophy of the eighteenth century to admit strongly 
 extenuating circumstances for this crime when the case was 
 that of a mother driven to the crime to conceal her sin. Such 
 a view seems decidedly modern; and, indeed, the ancient law 
 under Christian inspiration regarded only the protection of 
 the child. For this it was necessary to defend its weakness, 
 as every human being had to be defended, because in the
 
 67] RESPONSIBILITY 201 
 
 eyes of God the child was a soul with a destiny on earth; and 
 thus the conception of murder as imperilling a soul's salva- 
 tion was introduced. This likewise impresses us as a mod- 
 ern tendency. However we find a similar provision in the 
 fourth century in the Council of Ancyrus (314), from which 
 arose the penitentials as they survive. 1 Doubtless at the be- 
 ginning great severity of punishment prevailed. Infanticide 
 was looked upon as homicide by reason of a reaction against 
 the established pagan custom. 2 But at the Council of An- 
 cyrus the question of the desire of the mother of an illegiti- 
 mate child to conceal her sin was considered, and in regard 
 to her alone (and here is the modern point of view), instead 
 of a life-long penance, as would be imposed for homicide, 
 the punishment was reduced to a period of ten years, 
 owing to humane considerations, as the texts put it. From 
 then on all the penitentials reassert this provision. They 
 even disclose a deeper and more humane insight; they speak 
 of mothers who allowed themselves to be led into the sin of 
 the flesh, as it was called, and disposed of the child. Such 
 murder is considered only as the consequence of the first sin 
 and becomes one with it. It entails no special and distinc- 
 tive penance. The case is judged as a whole, as the case of 
 an erring woman in permitting herself to be seduced. The 
 rest is looked upon as the inevitable consequence of the se- 
 duction. The punishment is mitigated by considerations of 
 humanity, say the texts; 3 and no more humane, more indi- 
 vidual, or more subjective point of view could be conceived. 
 It is not the crime but the criminal alone that is to be regarded. 
 It becomes a subjective individualization under cover of a 
 
 1 See Schmitz, cited above, pp. 259, 356, 412, etc., and Hefele, "Concilien- 
 Geschichte," I, chap, i, 240. 
 
 2 On this point see a good thesis by M. R. Bouton, "1'Infanticide," Paris, 
 1897, p. 33, seq. 
 
 8 See Schmitz, cited above, pp. 624, 629.
 
 202 INDIVIDUALIZATION OF PUNISHMENT [ 67 
 
 wholly objective legal sentence; and this is what we now 
 demand. This subjective individualization derived from 
 this very conception of responsibility and freedom is the 
 same formula which we of to-day have reached. 
 
 This formula applies to that condition of virtual and 
 general freedom that inspires, though it does not create, 
 each particular action. When only the freedom of the action 
 was considered, it followed that the penalty was attached to 
 that very act. The- punishment was determined by the ex- 
 clusive regard of the act committed and was directed to the 
 past. But when one no longer considered the act committed 
 and realized that freedom goes back to the deeper strata of 
 the psychic personality, while yet unable to demonstrate its 
 definite intervention for each act in particular, the moral 
 and personal status of the act was decidedly lessened, and 
 consideration was turned to the restoration and reinstate- 
 ment of morality. Freedom was looked upon with reference 
 not to the past but to the future. One could not prove 
 what it was that directly inspired the crime; but one knew 
 what alone could arouse a struggle against the criminality 
 resident in the soul. Since punishment is again directed 
 towards the restoration of freedom, it is this very freedom, 
 the seed of the moral future of the condemned, that should 
 be considered, far more than the freedom of action which 
 had turned the wrongdoer towards evil ways. There is 
 something definite in the former which can be reckoned 
 upon as the lever for his regeneration; in the latter there is 
 nothing tangible. It is a matter of belief which cannot be 
 defined. In a theory of this kind, punishment considers 
 only the condition of responsibility which alone the Gospels 
 recognize, and not the state of responsibility which is a con- 
 struction of abstract reason and does not reflect the facts as 
 they are. If punishment is directed to the production of a
 
 68] RESPONSIBILITY 203 
 
 condition of responsibility it will individualize according 
 thereto; and it is in this manner that the conception of re- 
 sponsibility in the Gospels, far from being opposed to the 
 conception of individualization, prescribes the practice and 
 discipline thereof as the necessary adjustments to practical 
 conditions. These form the foundation of its position, quite 
 apart from all purely rational and dogmatic abstraction. The 
 practice of penitence and punishment in the Church never 
 looked to any other purpose. The conception of "casti- 
 gatio" was allied to that of "disciplina" and "remedium." r 
 It may be said in all sincerity, and with reference to the spirit 
 of the ecclesiastical law, if not to the practice, 2 that, from the 
 penitentials to the foundation of St. Michael at Rome by 
 Pope Clement XI, "Parum est coercere improbos puma, 
 nisi probos efficias disciplina." 3 
 
 68. Individualization in French Codes ; Political Crimes 
 
 If this combination of terms seems strange, and if dog- 
 matic minds, following a purely deductive reasoning, still 
 refuse to reconcile these two conceptions of responsibility 
 
 1 On the " Psense medicinales " of the ecclesiastical law see Vargha, " Ab- 
 schaffung der Strafknechtschaf t " (Graz, 1897), II, p. 151 and pp. 217, 218. 
 
 2 It is indeed necessary to make this reservation as between practice 
 and theory, and not to confuse the principle by which the system was in- 
 spired and the compromises determined by circumstance, by reason of the 
 social requirements that in the end ever determine measures. This is observ- 
 able from the beginning of ecclesiastical law, which indeed found its positive 
 inspiration in Roman law, in a legislation strictly shaped by the prevalent 
 social conditions. These distinctions will aid the understanding of the 
 ideas which at first seem somewhat paradoxical, and by which Uinschius in 
 his "Kirchenrecht," Vol. V, 265, p. 123, seq., attempts to challenge the 
 traditional conception held in regard to the penitential discipline of the ec- 
 clesiastical law. On this point see Gunther, "Geschichte des Strafrechts" 
 in Liszt's Review, Zeit. f. d. g. Str. W., Vol. XV, 1895, p. 166. His pres- 
 entatiori is the result of a too one-sided and inaccurate consideration that 
 does not take sufficient account of all phases of the problem. 
 
 1 Motu proprio of Pope Clement XI of November 14, 1703.
 
 204 INDIVIDUALIZATION OF PUNISHMENT [ 68 
 
 and individualization, it will not be profitless to show that 
 this paradox characterizes the present French school. Is it 
 proper to speak of the French as the classical school, or shall 
 it be called the corrective (penitentiaire) or by yet another 
 name? This is not easy to determine. It is clear, however, 
 that it is a school that accepts truth wherever it finds it, 
 without too close allegiance to systems, a school of prac- 
 tical methods and happy solutions, one of good sense and 
 fine Gallic insight. It has given rise to the three following 
 measures: to the provision of special punishments for politi- 
 cal crimes; to conditional sentences as embodied in the law 
 of parole; and to the banishment (relegation) of habitual 
 offenders, as prescribed by the law of 1885. A school that 
 may be credited with these three results stands for distinc- 
 tively subjective individualization. 
 
 Let us examine first the current distinction in the scale 
 of criminal punishments, between political punishments and 
 those of common law. It appears at first view to be a re- 
 versal of all traditional principles. For general welfare, 
 political crime (formerly a crime against the state or lese- 
 majeste) was the most serious of all, as it affected the safety 
 of the State, which under every system was one with the 
 government. Such crime was pitilessly and severely pun- 
 ished without regard for the individual. The objective as- 
 pect of the crime was commanding and dominant. Indeed 
 it may be urged that the more engaging, genial, and respect- 
 able the individual, the more dangerous he was as a political 
 criminal, the more his influence was to be feared, the more 
 the example set by his rebellion was of grave import, the 
 more dangerous became his crime hi its outer aspect; conse- 
 quently the more severely was he to be punished. In classic 
 antiquity, as in ancient law, from early mediaeval times up 
 to the darkest years of the French Revolution, political
 
 68] RESPONSIBILITY 205 
 
 crimes were invariably accorded the most severe punish- 
 ments, and they were the more ruthlessly executed when the 
 victims commanded interest and sympathy. 
 
 But a new conception emerged from the carnage of our 
 civil wars. It was born of the horror of bloodshed and wel- 
 comed as a breath of peace, that might make one forget its 
 origin. While under this view a political crime, on its ob- 
 jective side, remains the most serious of all offenses, sub- 
 jectively it bears no relation to common-law offenses. The 
 political offender is not a common criminal; he is not neces- 
 sarily an evil-minded man, not an enemy of society, or one 
 who cannot be assimilated as a social unit. He may be a 
 political opponent, but he is not antagonistic to the social 
 idea. The anarchist is anti-social; but the anarchist is not a 
 political criminal. There must be protection against the dan- 
 ger which the political criminal offers to the State, and it is 
 the State's duty to protect itself against him. But there is 
 no occasion to reform him by punishment nor to influence 
 him by the social disapproval of which punishment is the 
 expression; and still less to attempt an educational punish- 
 ment. He is not a pervert. Punishment will have no hold 
 upon him. It may arouse hesitation and fear by the threat 
 of the deprivation of his liberty, but to attempt a reform 
 of his conscience and opinions would be an absurd pretense. 
 What he needs is a political, and not a moral conversion; 
 and prison discipline will hardly change the politics of any 
 but those whose convictions are readily shifted. The influ- 
 ence of fear does not effect a moral reform. Hence political 
 punishments should not be in the same class with those of 
 common law. 
 
 As soon as this idea was accepted it brought about a revo- 
 lution in our laws. The subjective view and the conception 
 of individualization were substituted for the objective view
 
 206 INDIVroUALIZATION OF PUNISHMENT [ 69 
 
 of the material gravity of the crime. The modern view that 
 punishments should be differently organized for different 
 classes of criminals prevailed; and in the sequel will appear 
 the further consistent results of this double scale of criminal 
 punishments. At all events the conception that directly 
 resulted therefrom was that, side by side with the punish- 
 ments that apply to the evil-doer and make him the mark of 
 public disapproval, there must be punishments for honest 
 men, who, by the manner of their behavior have become a 
 public menace. Such punishments should not be degrading 
 or educational or corrective. They should be purely and 
 simply deterrent, or punishments in behalf of public safety 
 without other pretense. 
 
 69. Individualization in Deportation 
 
 That this was the precise position of the French penal 
 code is evidenced by the fact that at the extremities of the 
 scale we find two punishments of the same character, in- 
 volving imprisonment, that do not entail hard labor 
 which is regarded as the sign of penal servitude and 
 which are free from "legal" infamy. The one is detention, 
 the most serious political punishment, since it may last in 
 theory from five to ten years; and at the other extreme, 
 city-jail imprisonment for infraction of an ordinance, a 
 punishment that carries with it no infamy and has no 
 other status than a penalty legally provided. It is simply 
 a means of forcing citizens to respect the law, and is a very 
 light punishment, with a maximum of five days' imprison- 
 ment. Viewed formally as provisions of the same system, 
 these punishments are of the same nature and are purely 
 technical penalties, not measures of social disapproval. 
 They involve the payment of one's obligations in taking 
 one's chances. As a punishment they have no other bearing.
 
 69] RESPONSIBILITY 207 
 
 This group of punishments is withdrawn from the field 
 of common-law punishments. It is not until the year 1885 
 that we find a special punishment that likewise is withdrawn 
 from the list of ordinary punishments. I refer to the de- 
 portation of incorrigibles, which measure is a direct result 
 of the Italian school. Among the prized ideas of this school 
 is that of the existence among criminals (and including the 
 majority thereof) of a class not amenable to punishment. 
 They form the class that cannot be assimilated: whether 
 criminals by birth or by later development matters little. 
 Crime is their profession. There is no purpose in punishing 
 them, for punishment has no effect upon them. They must 
 be segregated, and society must be relieved of their pres- 
 ence; especially must the great cities be cleansed of this 
 social refuse. To receive these social outcasts, let there 
 be set apart a colony to which they be sent. Despite all 
 they may develop into good colonists; and that would result 
 to the benefit of society. The source of danger would there- 
 by be removed, and a possibility exists that in the end they 
 would confer a benefit upon the tropical colonies to which 
 they are sent. Such punishment constitutes a measure of 
 criminal economics in the true sense of the word, but ob- 
 viously not a measure of penal law, merely a measure of 
 social economy. 
 
 It is true that the authors of the law of 1885 were re- 
 strained by certain scruples which made them commit some 
 serious errors. They started from the idea that deportation 
 was not a punishment, that it was liberty outside of France, 
 which made of it merely a supervised and regulated exile. 
 Since the law had been broken, it followed that a punish- 
 ment should be imposed and the debt absolved. Thus the 
 man liable to deportation had to pay his penalty in France 
 before being eligible to deportation to the colonies. This
 
 208 INDIVIDUALIZATION OF PUNISHMENT [ 69 
 
 was a two-fold mistake. Deportation is doubtless not a 
 punishment in the classic sense of the word. It is, however, 
 still a deterrent measure that should be administered in 
 progressive stages. It is a punishment for incorrigibility, 
 or, if it be preferred, of a series of infractions that prove 
 incorrigibility. The view does not tally with a notion of 
 a series of debts to be paid, for when an account is once 
 settled, it wipes out the whole. On the other hand, it falls 
 in well with the idea of a criminality to be overcome and 
 minimized. It is clearly and primarily a preventive measure. 
 But this preventive measure remains the penalty for a 
 series of criminal actions that furnish the proof, in those 
 thus guilty, of a condition of chronic insubordination. It 
 is this condition of insubordination that likewise demands 
 its special penalty. Why should the deported, inasmuch 
 as they undergo an actual punitive treatment, be subjected 
 in France to a preliminary punishment? Why particularly 
 a punishment of the older type, a punishment of an edu- 
 cational kind, when they are assumed to be refractory to 
 all punishment? They should be put to work in the colonies 
 as quickly as possible, instead of still further having then* 
 powers drained by the routine of the prison and solitary 
 confinement. 1 This involves a two-fold mistake and a 
 
 1 See the excellent study by M. LeveUU in "Les institutions penitentiaires 
 de la France in 1895" (Paris, at the meeting of the Societe generate des 
 Prisons, 1895), p. 284, seq. There are many defects involved in this law of 
 1885 of which this is not the place to speak. It is sufficient to indicate the 
 most serious, the idea of a purely legal criterion of incorrigibility, depending 
 in an arbitrary fashion upon the number and kind of offenses without re- 
 gard to the opinion of the judge. The discussions at the Congress of St.' 
 Petersburg show how difficult is this criterion of incorrigibility. The French 
 system constantly tends to leave everything to the law and nothing to the 
 judges. This is a spirit of unfortunate distrust. On the other hand the law 
 of conditional discharge makes it possible to apply it to punishments imposed 
 upon those eligible to deportation, in so far as that, if one thus discharged 
 conducts himself well for ten years, he is not liable to deportation. But as it
 
 70] RESPONSIBILITY 209 
 
 double misfortune. It arises from the belief that deporta- 
 tion could be made a sort of exile with theoretical freedom, 
 while in reality it is a punishment, though of a different 
 kind and imposed as a measure of social security rather 
 than of personal reform. But it is a punishment by virtue 
 of its legal basis (which goes back to the conception of re- 
 sponsibility) as well as by the treatment that it entails. 
 The position maintains that the incorrigible man, in so far 
 as he is legally responsible for his incorrigibility, shall sub- 
 mit to the punishment which his condition demands. 
 
 The penal code instituted deterrent punishments for 
 offenders who were not criminals by nature. The law of 
 1885 in turn established a penalty of elimination for 
 incorrigibles. There is thus clearly indicated in French 
 legislation a three-fold classification of criminals with cor- 
 responding punishments: delinquents, without criminal per- 
 version; incorrigibles; and, between the two, the large group 
 of offenders exhibiting a perversion of greater or less degree, 
 but presumably susceptible to reform. This is the three- 
 fold classification in French law at present. 
 
 70. Individualization in Short-term and Long-term 
 Sentences 
 
 But the French school has gone beyond this. Within 
 this intermediate group with which common law deals 
 that of offenders who psychologically are criminals but are 
 supposed to be susceptible to reform and punishment 
 there are distinctions to be made. There are the first 
 offenders and the rest; next, within both groups, and par- 
 is the administration, and not the judge, that takes the initiative in condi- 
 tional discharge, it results that in fact the determination and sentence are put 
 in the hands of the administration, and not of the judiciary control. (Law 
 of April 14, 1885, art. 12.) Moreover this is quite a fortunate solution, since 
 it is by the testing of his freedom under surveillance of the administration, 
 that the evidence of incorrigibility of the criminal may be afforded.
 
 210 INDIVTOUALIZATION OF PUNISHMENT [ 70 
 
 ticularly within the former, there are the chance victims 
 of a vicious, passionate, or dishonest impulse; and again 
 those by nature vicious, who though already given over to 
 the habit of delinquency, are not hopelessly lost but have 
 still a chance of regeneration. But the indifference of the 
 law draws no distinction between them. 
 
 However, before reaching the law of 1891, prescribing 
 conditional sentences, we come upon reforms due mainly 
 to the administration, and hi the direction of individual- 
 ization. It is well to recall that many of these reforms fol- 
 lowing upon the legal provisions, had as their direct cause 
 the requirements of the budget. Their effect has been not 
 the less beneficial. So, accordingly, the penal code ad- 
 mitted punishments of different nature, corresponding to 
 the several types of violation committed. This was pe- 
 culiarly reasonable with reference to detention in general 
 of which there were four varieties. In particular, im- 
 prisonment was to involve a different discipline according 
 to the crimes or offenses concerned. Those sentenced for 
 true crimes and those sentenced for merely legal infractions 
 were to be placed in different institutions. The severity 
 of the treatment was to be proportioned according to the 
 severity of the offense. The resources of the budget did not 
 permit the enforcement of such distinctions and the pro- 
 vision of separate institutions. The differentiation was 
 then made upon another basis; it was no longer in terms 
 of the nature of the imprisonment but of its duration, re- 
 sulting in short-term and long-term sentences. The former 
 were served in jails and the latter in penitentiaries, without 
 considering whether hard labor or corrective discipline was 
 involved. This was in direct violation of the law, but it 
 produced excellent results, for the short-term sentences 
 were almost always applied to first offenders. It would be
 
 70] RESPONSIBILITY 211 
 
 rare for an habitual offender to be sentenced to a few months 
 in jail. The incidental offenders were kept apart, and the 
 professional criminals were sent to the penitentiaries. This 
 amounted to dealing with those guilty of repeated misde- 
 meanors in much the same way as with first offenders in 
 crime; and this is quite right. Those committed for a second 
 or third theft, although keeping to petty larceny, are differ- 
 ently tainted, in most cases, from those engaged in then* 
 first crime. It is not the gravity of the offense by which 
 the criminality of the individual should be judged; far from 
 being directly related, the two are most commonly in in- 
 verse ratio. 
 
 This distinction was in the end legally recognized in the 
 law of 1875 on solitary confinement, .applicable only to 
 short-term sentences. Moreover, it was recognized, quite 
 apart from the question of subjective criminality, that the 
 treatment for short-term sentences, for the very reason 
 that their duration did not permit of the supervision and 
 the stages of progressive education of the long-term sen- 
 tences, should be assigned to a distinct administration; and 
 this, not only with reference to labor, but also where solitary 
 confinement is not in use. It was owing to these consider- 
 ations that the important decree of November 11, 1885, was 
 issued, concerning the organization of short-term imprison- 
 ment where promiscuity was hi vogue. As a consequence, 
 since 1875, all those sentenced to less than a year of im- 
 prisonment must serve their sentences in solitary confine- 
 ment, and since, in view of this material provision, the jails 
 had to be rebuilt and refurnished, they were subjected to 
 a more or less communal routine, very different from that 
 of the penitentiaries. On the other hand, all those sentenced 
 for long terms, that is for more than a year, whether they 
 had committed a crime or a statutory offense, whether in-
 
 212 INDIVIDUALIZATION OF PUNISHMENT [ 70 
 
 volving hard labor or corrective discipline, were sent to the 
 penitentiaries. Since the law of 1875 the like status of 
 corrective discipline for long-term sentences and hard labor 
 has become a legal fact, sanctioned by law. 
 
 The arrangement meets with approval. It is better than 
 that of the penal code founded upon the distinction between 
 crimes and statutory offenses. It has as its basis a principle 
 of individualization, the distinction between the incidental 
 offender and the offender by nature and psychological 
 condition. Yet all this was not adequate; and the next 
 advance was towards the law of 1891, the credit of which 
 belongs to M. Berenger. It is but fair that it should be 
 known by his name and that posterity should thus render 
 a permanent tribute to this great philanthropist, who, 
 despite prejudice and bias, ever courageously directed his 
 efforts to the improvement of moral and penitentiary con- 
 ditions. The law of parole should mark a turning-point 
 in the trend of penal law. It is the definite abandonment 
 of the conceptions of absolute justice in favor of that of a 
 criminal economics in the best sense of the word. The best 
 justice is that which saves its victims; and that is the very 
 purpose of conditional sentences. Here we approach the 
 last stage of individualization; one can hardly go further. 
 All we ask, indeed, is that punishment should be differen- 
 tiated according to the nature of the individual; we do not 
 ask the suppression of punishment. Punishment is indeed 
 suppressed in its outward appearance. However, from 
 the point of view of justice, an infraction has been com- 
 mitted and a punishment must be forthcoming. The penalty 
 must be enforced. Society thus proceeds like a creditor 
 who concedes to the debtor a discount of his debt. Society 
 does this by reason of the interest which the individual pre- 
 sents. Moreover this favor should be granted only to first
 
 70] RESPONSIBILITY 213 
 
 offenders, and here the distinction between first offenders 
 and others becomes legally sanctioned. The purpose is to 
 prevent confirmed criminality. The Berenger law is such 
 a preventive measure. 
 
 The preparatory steps to this issue were taken long in 
 advance. In 1875 the short-term sentences were separately 
 considered, the idea being thus to make the treatment of 
 short-term offenders as morally effective as possible. It was 
 thought, as every criminologist of to-day believes, that the 
 short-term punishments form the critical point of the peni- 
 tentiary regime. The many objections made by criminolo- 
 gists (Mittelstadt, Vargha, etc.) 1 against punishments that 
 deprive one of freedom apply particularly to imprisonment 
 as a punishment for first (or early) offenses, broken up into 
 fragments of quite insignificant length. Punishments of 
 this type do not last long enough to reform, but they last 
 long enough to contaminate. Imprisonment, even when 
 served in solitary confinement and free from all promiscuous 
 association, is, in its first impression, of itself corrupting 
 because it destroys the sentiment of self-esteem. 2 Thus 
 since 1875 it has been recognized that there was more to be 
 done hi this field. In 1885 a further step was taken by the 
 general introduction of conditional discharge. This was 
 
 1 Mittelstadt, "Gegen die Freiheitsstrafen" (second edition, Leipzig, 
 1879); and Vargha, "Die Abschaffung der Strafknechtschaft" (2 vols., 
 Graz, 1896 and 1897). 
 
 2 All this is well known and, sadly enough, too well established to need 
 further corroboration. It is interesting, however, to note the testimony of 
 one who is not a criminologist or an expert but is indeed a psychologist with 
 large heart and clear insight, the late Dostoiewsky. His adverse opinion 
 of the treatment in convict prisons and, as well, of solitary confinement, 
 is familiar. See Dostoiewsky, "Souvenirs de la Maison des Morts," pp. 17 and 
 18. Likewise consult Paul Hymans, "La Lutte centre le crime" (Brussels, 
 1892), especially p. 53, seq. Moreover consult M. Montgomery, an old pris- 
 oner, and his opinion in regard to long terms in the article cited above, p. 135, 
 note 1.
 
 214 INDIVTOUALIZATION OF PUNISHMENT [ 70 
 
 no longer limited to minors sent to prison colonies, irre- 
 spective of the nature of their previous sentence. The con- 
 ditional discharge was not an act of administrative clemency 
 but a recognized mode of serving a sentence at large under 
 a kind of patronage or moral surveillance. Why then may 
 not this method of serving a sentence in liberty begin with 
 the very beginning of punishment? In the progressive 
 system, conditional discharge is but the reward of good 
 conduct; it assumes that part of the debt is paid and part 
 of the sentence served. But for those who are in need of 
 oversight and not of prison discipline, why should not this 
 form of discharge under surveillance and moral protection 
 begin at the outset? 1 Vargha proposes such measures as a 
 general substitute for all punishments by imprisonment 
 and penal servitude. In that form the proposal is quite 
 Utopian. 2 But as a limited provision for certain special 
 offenders, whom it is desired not to withdraw from their 
 work or their vocation, this serving of a sentence while at 
 large would be an excellent provision. It is probable that 
 in the future this will be the great substitute for prison 
 discipline; and especially so in view of the fact that such 
 conditional sentence proves to be more effective. It ad- 
 mits of full and entire liberty, omitting all guardianship 
 and oversight, and yet does not assume that the punish- 
 ment has been satisfied. The punishment is withheld or 
 suspended, conditionally suppressed. At all events the ex- 
 ample of conditional discharges has served as a transition 
 and approach to the conception of a purely conditional 
 sentence. 
 
 1 See Aschrott, "Strafensystem und GefSngniswesen in England," p. 98, 
 aeq.; and as precedents for conditional condemnation, see Mumm, "Die 
 Gefangnisstrafe und die bedingte Verurtheilung," p. 25, seq. 
 
 2 See the account given by Oppenheim, in Kritiache Vierteljohresschrift f 
 Vol. XXXIX, 1897, p. 571.
 
 71] RESPONSIBILITY 215 
 
 71. The System of Parole : its Faulty Application 
 
 Moreover, when the law of 1891 was voted upon, there 
 was very little discussion of principles; but, what was more 
 to the point, the facts were emphasized. Statistics proved 
 that short-term punishments, and even the simple contact 
 with prison-life, whether of solitary confinement or not, 
 was enough to make a confirmed criminal of any one ex- 
 posed to its influences. Of what benefit is it for society to 
 incarcerate a first offender when there is reason to believe 
 that he is simply a misguided person, not likely to repeat 
 his offense? His only means of salvation may be that of 
 escaping punishment; and salvation is everything. More- 
 over, wherever disciplinary authority exists, whether in the 
 family in favor of the father, or in government in favor of 
 superior officials, the first law of good discipline if that in- 
 deed is the object is almost always, except in absolutely 
 serious cases, to pardon the first offense. Shall society alone 
 refuse to exercise pardon? 1 It is only in deference to an 
 outgrown abstract system of absolute equality that the law 
 is law, and that to suspend its application requires the 
 authority of those who make the laws. Those who have the 
 power to make laws have only to delegate to others the power 
 to suspend or to regulate their application. That is what 
 was done hi 1891, to the advantage of the judiciary author- 
 ity. The judges were given the means of saving those who 
 appeared before them for the first time. They of necessity 
 had to probe the motives and sentiments of the defendants; 
 it was for them to appraise and judge, and the law prescribed 
 
 1 On this point see the precedents dating from mediaeval times and the 
 ancient law reported by Chiaroni, "La condanna condizionale " (Treviso, 
 1897, p. 21). See what I have said elsewhere in regard to the law of pardon, 
 in the volume of M. Octave Aubry, " L'indulgence et la loi," Paris, 1908, p. 190, 
 seq., particularly pp. 196-197.
 
 216 INDIVIDUALIZATION OF PUNISHMENT [ 71 
 
 no further or partial instruction. The law of 1891 did not 
 even make a distinction in terms of the gravity of the offense. 
 It considered all cases of corrective imprisonment irrespec- 
 tive of duration, even cases involving the maximum legal 
 period of five years, and cases assigned a corrective punish- 
 ment by reason of provocation or of mitigating circum- 
 stances in the charge. 
 
 The possibility of granting parole, even for those sentenced 
 to an imprisonment of five years, seemed objectionable; and 
 it still appears so, possibly more than ever. In the proposed 
 revision of the French penal code it was thought desirable to 
 accede to these protests; and the field of application of the 
 Berenger law was decidedly reduced. 1 This involves a mis- 
 understanding of the Berenger law. It makes the parole a 
 kind of grace or favor depending upon the gravity of the 
 offense, and requires a consideration of the deed committed. 
 This totally changes the spirit of the law. It was the law's 
 intention that the judge should take into consideration not 
 the objective gravity of the deed but the chances of reform 
 of the individual; and upon that the crime has no bearing. 
 Take the case of a young thief who has the temperament of 
 a true malefactor. He commits his first theft, or rather, it 
 is the first time that he is caught in the act. The offense 
 itself carries not more than three months' imprisonment. 
 According to the proposed amendment it would come under 
 the conditions of the Berenger law. Take the case of an 
 honest cashier, faithful and steady, who is drawn into an ir- 
 regular life. He gets into debt, takes money from the cash- 
 box, sincerely believing that in a few days he will be able to 
 replace it. He is discovered before he can do so. It is a seri- 
 
 1 See the just criticism on this subject in the essay by M. Le Poittevin, 
 "Le projet de reforme du Code penal" (Revue penitentiaire, 1893, pp. 174- 
 175).
 
 71] RESPONSIBILITY 217 
 
 ous offense. To make this offense punishable by nothing 
 less than imprisonment makes it impossible to grant the 
 parole, which, however, is granted to the petty thief who 
 has no need of it. To give the latter his freedom is to re- 
 store him to his environment and to the temptations that it 
 entails. What he needs is a corrective and educational dis- 
 cipline that may lift his life out of vagrancy and induce 
 different habits. On the other hand, because the cashier's 
 sentence exceeds three months in jail, he is refused the parole, 
 although he but yielded to the temptation of a moment. 
 Intrinsically he has not thereby become a dishonest man; 
 he is repentant, has given up his evil ways, and gives assur- 
 ance that he will not return to them. His condemnation is 
 demanded; he must undergo his punishment. It is easy to 
 anticipate what the result will be and what will become of 
 him on leaving the jail. His position and his future gone, 
 his career forever spoilt, reinstatement hardly possible, he 
 has to face poverty and shame. Almost inevitably he drifts 
 to dubious callings and a career of fraud. He does not join 
 a band of thieves, for such is not his temperament, but he 
 can find occupation only in such suspicious callings, followed 
 by shady characters, as are open to persons who have lost 
 honor and self-esteem. The chances are nine in ten that he 
 will become one of their number. Parole permits the one 
 man to return quite too readily to habits of idleness and 
 vice, and the deprivation of parole makes the other more or 
 less a knave for life. Can it be said that a provision able 
 to bring about such results is a fortunate change? 
 
 A proper estimate of the Berenger law requires that it be 
 considered in the spirit in which the eminent man to whose 
 fine initiative it was due intended and framed it, as it was 
 enacted in 1891, and not in the form given it by those who 
 were imbued solely with the predominant and almost ex-
 
 218 INDIVIDUALIZATION OF PUNISHMENT [ 71 
 
 elusive consideration of the objective gravity of the crime. 
 Of all forms of individualization this is, if possibly not the 
 most thorough, at least the most adaptable and elastic; and 
 that for two reasons: the first, because no prescription is 
 imposed upon the judge and he need be guided solely by his 
 personal impression; and the second, because under the pre- 
 text of individualization there is involved, not a change of 
 punishment but an actual suspension of the punishment 
 itself. 1 Without going to the extent of pardoning altogether, 
 one can go no further. 
 
 In the end what is needed is a legislation such as ours, 
 which, disregarding the outer form of the offense, admits 
 the legal distinction between short-term and long-term 
 sentences, between political and common-law punishments; 
 which accepts elimination or deportation for those pre- 
 sumably incorrigible, and on the other hand a purely 
 conditional sentence for first offenders whose reform seems 
 certain, and who, despite this first offense, may still be 
 classed among honest folk. A legislation of this type is legis- 
 lation upon a purely subjective basis, favoring the individual- 
 ization of punishment, applying it, and practicing it. Such 
 progress must be a matter of gradual advance and involves 
 reforms to be added from time to time to the body of our 
 old penal code. The present problem is to bring together 
 these several innovations and to develop their logical conse- 
 quences. The reforms of 1875, of 1885, and of 1891 must 
 be taken as the basis of this new construction. Instead of 
 
 1 It is as a measure of individualization of punishment that conditional 
 sentences should be regarded; and as such it is different from all other regu- 
 lations with which it may be compared. See for the movement thus brought 
 about in Germany, and the criticisms that have been advanced on this point, 
 the two pamphlets of Bachem, "Die bedingte Verurtheilung" (second edi- 
 tion, 1895), and " Bedingte Verurtheilung oder bedingte Begnadigung?" 1896. 
 See also Liszt and the works to which he refers (edition 1895, 15, text and 
 note 3. p. 76).
 
 71] RESPONSIBILITY 219 
 
 advancing the cause the proposed amendment retards it; 
 it is a step backward. It is at best a sort of revival of the 
 old penal code of 1810. The latter is indeed better in its 
 somewhat severe rigidity than when arrayed in the legal de- 
 tails which its remodeled form is made to wear. What is 
 wanted is a new construction built up on the sound premises 
 of the penal code of 1810 and taking as a guide the laws of 
 1875, 1885, and 1891. These have only to be developed in 
 regard to certain simple issues in order to bring about an ex- 
 cellent legislation which shall apply individualization upon 
 the basis of responsibility. 
 
 To trace the larger outlines of such an attempt is our 
 present task. It does not involve the consideration of further 
 details. The principles are at hand; there must be supplied 
 an outlook that will show the special measures by which the 
 newer conceptions may and should find their application. 1 
 
 1 Since the law of March 26, 1891, the institution of parole has been 
 adopted in the Canton of Geneva (law of October 29, 1892), in Portugal 
 (law of July 6, 1893), in the Grand Duchy of Luxemburg (law of May 10, 
 1892), in Italy (the Ronchetti law of June 26, 1904). In Germany, as al- 
 ready noted, a movement in favor of the parole has been on foot for several 
 years. If it has not, as yet, been admitted for all first offenders, there 
 has been, on the other hand, an advance beyond parole in that a system of 
 pardon, with a verbal reprimand, has replaced the sentence of first offenders 
 under eighteen years of age; this was done by authority of the law of July 2, 
 1900. On this law see Liszt, id., 1905, 15, note 4, p. 75. In Russia condi- 
 tional sentences have been made the subject of a recently proposed law. 
 (See the report of C. Sacharqff, of Moscow, on the reform of justice in Russia: 
 Bulletin de I' Union intern, de droit pSnal. 1907, pp. 275, 297, and 371). 
 
 There should be mentioned the proposed law of M. Emile Morlot, for 
 France, having as its object the introduction in our legislation of the system 
 of pardon, pure and simple, without reprimand. (See the text of the pro- 
 posed law, with the report that preceded it, in the Journal officiel, attached 
 to the protocol of the session of December 19, 1907.)
 
 CHAPTER VIII 
 
 LEGAL INDIVIDUALIZATION 
 
 72. Legal Individualization necessarily General. 
 
 73. Examples of False Individualization. 
 
 74. Approach to Judicial Individualization and the Cases concerned. 
 
 75. The Proper Education of Magistrates. 
 
 76. The Place of the Jury in Individualization. 
 
 72. Legal Individualization necessarily General 
 
 IN a general survey of the subject three distinct types of 
 individualization appear: the first, or legal Individualization, 
 is determined by the law in advance as a penalty; the 
 second, or judicial individualization, which is the best, is 
 determined by the judge; and the third, or administrative 
 individualization, is determined in the course of punishment. 
 
 In reality there is no individualization by law. The law 
 can distinguish classes of cases; it cannot recognize individ- 
 uals. All that individualization by law can consider are the 
 reasons for the extenuation or aggravation of punishment, 
 based upon the relative gravity of the crime, and, in so far, 
 upon the degree of responsibility. Such individualization is 
 based upon responsibility and returns to the position of the 
 neo-classic school. It is a false individualization. It is easy 
 to understand that the law should admit reasons for the ex- 
 tenuation of punishment when the offense in its outer aspect is 
 not serious. This amounts only to a reduction of the penalty 
 and is fair enough. In many instances it may properly 
 apply; for example, in the well-known form of what is some- 
 times still called contingent liability wherein the nature of 
 
 220
 
 72] LEGAL INDIVroUALIZATION 221 
 
 the offense is altered undesignedly. 1 Let us suppose an as- 
 sault with the intent to incapacitate. It may be urged that 
 the possibility of a serious consequence of the assault may 
 have been foreseen. Let us assume that such occurs and 
 results in a murder. Inasmuch as the affair was in fact pre- 
 meditated, one may regard it as an intentional murder. 
 However, the crime committed is not the crime that was 
 originally planned. There thus results a change of the ob- 
 jective status of the crime; and this is recognized in the legal 
 mitigation of the punishment. The same is true of an act 
 of negligence in which there was a similar possible anticipa- 
 tion of a criminal issue. Such is the case of a hunter who, 
 in firing upon something passing within range of his gun, 
 may reflect that he is taking the chances of killing some one. 
 The quarry moves, the hunter fires. He runs the risk of a 
 murder, and a murder ensues. The act may be regarded 
 not as an accidental homicide but as an intentional murder; 
 it should however become a murder with extenuating cir- 
 cumstances. The same applies to an accomplice who per- 
 forms his part in a venture, knowing full well to what kind 
 of a crime he is lending his aid. Such is the case of a drug- 
 gist knowingly selling a poison, or of a locksmith consenting 
 to make fase keys. 2 Even in the classic conception of com- 
 plicity it may and has been regarded that there is not an 
 identity of crime for principal and accomplice. 3 The latter's 
 crime may well be regarded as the same as that of the prin- 
 
 1 On contingent liability see a very suggestive report of Liszt to the 24th 
 Congress of German jurists (Verhandlungen des XXIVten deutschen Juris- 
 tentages, 1897, I, p. 107, seq.). Also the thesis of M. Raoul Duval (Paris, 
 1900). 
 
 1 See the notable thesis of M. Thibierge, "La notion de la complicite" 
 (fitude critique), Paris, 1898, passim, and principally pp. 45-46, 58, 65, and 
 73, seq. 
 
 3 See the subtle and engaging theory of M. Garraud, "Trait6 th6orique et 
 pratique du droit penal frangais (edition 1888), Vol. II, p. 390, seq.
 
 222 INDIVIDUALIZATION OF PUNISHMENT [ 72 
 
 cipal, but accompanied by extenuating circumstances. The 
 assumption of a necessary mitigation of punishment in all 
 cases of complicity would be indefensible, in that it would 
 imply a lesser degree of criminality on the part of the ac- 
 complice. The contrary is often the case. The best system 
 is that incorporated in the Swiss draft, which permits the 
 judge to reduce the punishment when there is a difference 
 of culpability. 1 The above are instances of wholly justifiable 
 mitigation. They involve only extenuation with reference 
 to responsibility; and this does not consider the individualiza- 
 tion of punishment in its true sense. 
 
 One may however conceive a legal provision so framed 
 as to provide a true individualization of punishment. This 
 implies a legal classification which shall indicate by what 
 criterion each of the classes considered shall be recognized; 
 following upon such a scheme, a systematic punishment 
 adapted to each class must be prescribed. Such provisions 
 fall within the province of the law; and it is along this line 
 that the penal legislation of the future should be directed. 
 But there remains a possible distinction. The law clearly 
 provides only the general basis and the very variable factors 
 entering into a sentence, leaving to the judge the duty of 
 making a strictly individual classification after a special 
 study of each individual; it thereby becomes a most desir- 
 able legal form of a judicial individualization. But the 
 least desirable system is that by which the law assumes to 
 supply the necessary criterion of the classification, as does 
 our law of 1885 on the deportation of incorrigibles. It rests 
 upon an assumption that is always uncertain and often mis- 
 taken; for the only indication of the nature of the criminal 
 which it considers is that supplied by the character of the 
 offense; and that is wholly inadequate. Thus it is often 
 
 1 Preliminary draft of the Swiss penal code (wording of 1903, art. 22).
 
 73] LEGAL INDIVIDUALIZATION 223 
 
 said that infanticide implies a perversion of the maternal 
 sentiment, and that only a degraded woman would be guilty 
 thereof. Ecclesiastical law, however, considers that infanti- 
 cide may often be the act of desperate or unfortunate women, 
 and that it would involve most questionable assumptions to 
 judge these persons by the odium of the crime which they 
 have committed. 
 
 73. Examples of False Individualization 
 
 To make an individual classification through an auto- 
 matic application of the law would be a true form of legal 
 individualization; and the law of May 27, 1885, furnishes a 
 very sad example thereof. It is an individualization made 
 at random with the hope that in the long run justice will be 
 done; and this may be true of this law, for the sentence of 
 deportation is imposed according as the individual comes 
 under one or another of the categories of the law. There is 
 thus a considerable chance that the legal charge will indi- 
 cate the defendant's incorrigibility. But why should not the 
 decision be left to the judge? He alone should have the last 
 word in such cases. He deals with real cases, while the law 
 deals only with abstract considerations. Hence the law can 
 but supply the judge with the basis of individualization. It 
 should not itself assume to make the individualization. 
 
 A similar consideration may be advanced in regard to the 
 effect of the motive upon the severity of the sentence. 1 It 
 has frequently been proposed to introduce into the law a 
 classification of the various motives concerned in crime, 
 
 1 See particularly the excellent work of Holtzendorff, "Das Verbrechen 
 des Mordes und die Todesstrafe: die Psychologic des Mordes." Also the 
 account, by Gorgon, of Alimena's "Le Premeditazione," in the Nouvelle revue 
 historique du droit frangais et Stranger, 1889, p. 792, aeq. Also the thesis 
 cited of M. Legrand, on "Premeditation" (Paris, 1898), and that of M. 
 Rigaud, "De 1'influence du motif en matiere criminelle" (Paris, Rousseau, 
 1898).
 
 224 INDIVIDUALIZATION OF PUNISHMENT [ 73 
 
 with the purpose of enabling the law to judge the nature of 
 the criminal according to the motive, and to adjust the pun- 
 ishment accordingly. Thus a murder may have been in- 
 spired by very base and perverse motives, for purposes 
 of robbery, or possibly by mere wanton violence. But it 
 may have been inspired by motives shared in common with 
 upright men, such as indignation or an outburst of justifi- 
 able anger. It was proposed to have the law consider these 
 several motives, classify them carefully, and according to 
 their nature and character reduce or increase the punish- 
 ment. Such provisions were made by Stooss in the first 
 Swiss draft. There would thus be a form of legal individual- 
 ization based upon an assumption derived from the motive. 
 But the question at issue is precisely whether the motive 
 should serve as the proper basis for individualization of pun- 
 ishment, or whether it should preferably be regarded as the 
 true criterion by which to gauge responsibility. This issue 
 should likewise be committed to the authority of the judge; 
 for it is the judge's place to gauge the punishment. Such 
 questions properly belong to judicial individualization. We 
 thus return to the principle, above set forth, that all indi- 
 vidualization by law is false, in that it is based upon the 
 question of responsibility and in that it ignores the true 
 nature of the criminal. 
 
 Let us consider some examples taken from the Italian 
 penal code. The punishment is lessened in cases of abortive 
 attempt, in cases of complicity, in cases of crimes committed 
 in foreign lands. 1 It is self-evident that these several causes 
 of extenuation refer to a modification in the objective char- 
 acter of the crime and not to the relative psychological 
 criminality of the individual. Thus the extenuation in 
 cases of attempt arises from the fact that the agent was 
 1 The Italian Penal Code. arts. 61-62, arts. 63-66, arts. 3-6.
 
 73] LEGAL INDIVIDUALIZATION 225 
 
 stopped at a time when, through no merit of his own, he 
 had not yet achieved his purpose. This is a matter of chance. 
 In what respect does this lessen his culpability? It is true 
 that the injury has not been effected; but the punishment 
 is not intended as the expiation of a material injury, other- 
 wise it should be completely cancelled in case of a wholly 
 unsuccessful attempt. It is the guilt that is to be punished, 
 and the guilt is the same. So far as concerns the sinfulness 
 of the individual and the punishment that he deserves, it 
 cannot be urged that the fact of having been stopped in 
 the course of the execution has any bearing upon the ques- 
 tion. Extenuation in cases of complicity arises from the 
 fact that the accomplice is only the accessory and is subject 
 to a leader whom he follows. But it is a common practice 
 for criminal gangs to assign the several parts; some attack 
 and strike the blow, others keep guard, or perform some 
 minor part. With due consideration of these circumstances 
 how can one be sure that some are less culpable than others? 
 Perhaps those least incriminated are the very ones who 
 devised the crime. The man who struck the blow may have 
 been forced to act, possibly drugged to give him courage; 
 the others took it upon themselves to safeguard the exe- 
 cution of the crime. Viewed from without, their part may 
 appear quite accessory, but they should be judged and 
 punished according to their inner moral participation. In 
 lessening their punishment the Italian code decides in ad- 
 vance that their criminality is of a minor degree. This 
 assumption is quite gratuitous. A like consideration applies 
 to crimes committed in foreign lands. The ground of extenu- 
 ation is that the act has caused no injury or excitement 
 in the land in which it occurs. But the very presence of 
 the criminal may of itself be a considerable disturbance. 
 Next is urged that the danger or injury caused by the crime
 
 226 INDIVIDUALIZATION OF PUNISHMENT [ 73 
 
 does not affect the fellow-citizens of the country to which 
 the criminal belongs. But the danger lies not in the crime 
 and not in the past; it is in the future, and in the person of 
 the criminal. A released criminal becomes a common dan- 
 ger. What matters the place in which the crime has been 
 committed? The criminal must be treated according to 
 what he is, with a view of lessening the danger that he him- 
 self carries. Even if he be considered only in terms of re- 
 sponsibility, how does his removal from the boundaries of 
 his country diminish his culpability? 
 
 As a last example, take cases of alleged diminished 
 responsibility, such as applies to persons of neuropathic 
 disposition. They are the more dangerous in that their 
 tendency to crime is purely pathological. They are not 
 entirely irresponsible; hence they should be subjected to 
 punishment. But it is urged that as their responsibility 
 is less, so their punishment should be very brief, that 
 they should be restored as quickly as possible to freedom, 
 a procedure that is the more dangerous hi that such offend- 
 ers are apt to act on a sudden impulse. Seemingly their 
 greater menace results in the prompter restoration of their 
 freedom. The true question is to determine whether in 
 place of punishment it would not be better to provide special 
 treatment in an asylum. That a minimum of detention 
 should be fixed in accord with the degree of responsibility 
 is right enough, but it is yet more important that the judge 
 should be permitted to prolong the detention if public safety 
 demands it and if the person concerned is approaching the 
 stage of dementia. 
 
 It is thus seen that all the alleged cases of legal individ- 
 ualization are but cases of false individualization. Let us 
 accordingly leave the field of the law and reach that of 
 judicial individualization.
 
 74] LEGAL INDIVIDUALIZATION 227 
 
 74. Approach to Judicial Individualization and the Cases 
 concerned 
 
 That the judge alone is capable of knowing the offender 
 and of taking account of what he is may be conceded with- 
 out further argument, but this arbitrary power of the judge 
 (for so it must be called, even though the term be used 
 without prejudice) nevertheless raises serious difficulties. 1 
 There is a special difficulty in countries where the jury sys- 
 tem obtains and where a division of function exists between 
 the professional and these temporary judges. To which 
 of the two shall matters pertaining to the individualization 
 of punishment be entrusted? 
 
 Account must first be taken of the kind of decisions that 
 the judge was formerly called upon to render. If individ- 
 ualization is mainly designed to place at the disposal of the 
 judge punishments of different nature according to the char- 
 acter of the criminals, the judge will have two types of 
 problems to solve, the one, and the more serious, relating 
 to the choice of punishment, the other, to its duration. The 
 latter will hardly differ from that which is now exercised 
 in the French law, particularly under the system that recog- 
 nizes extenuating circumstances. Our magistrates already 
 exercise considerable authority in this respect. Yet such 
 authority could be made yet more extensive, as is provided 
 by the penal code of Holland. 2 However commendable 
 such provisions, the existing provisions involve delicate 
 questions of degrees of penalty, and the difficulty would 
 not be increased if the judge were given further authority 
 
 1 M. E. Carnevale in a series of notable articles "L'arbitrio del Giudice 
 nell' applicazione della pena" in the Rivista penale, 1897, p. 109, seq.\ p. 833, 
 teq., has touched upon one of the most difficult points. See also an article 
 by M . C. de Fence, in the Revue ptnitentiaire, 1898, p. 507. 
 
 2 Penal Code of Holland, art. 10 and scq.
 
 228 INDIVTOUALIZATION OF PUNISHMENT [ 74 
 
 to reduce the punishments; indeed, the reverse might be 
 the case. It is not the recognition of the extreme cases 
 the least degree of criminality, and again the most pro- 
 nounced that is troublesome, but the disposal of the 
 doubtful and intermediate cases. It is easy for the judge 
 to reach an opinion in regard to an individual who might 
 be given the benefit of what our legal provisions call ex- 
 tenuating circumstances ; what is peculiarly difficult for the 
 intermediate cases is to find the exact degree of clemency 
 that the case warrants and that also satisfies the demands 
 of a sound justice. What we already have is an arbitrary 
 judicial power; though by this we understand not an un- 
 equal and partial justice but a justice unhampered by a 
 legal criterion. No objections are made to the present sys- 
 tem; and we may admit that our magistrates, with the aid 
 of the jury, have proved its worth. They may be said to 
 have made the best of the situation; and yet further progress 
 is possible. No one proposes a return to the hampered and 
 legally restricted procedures of older regulations: such bar- 
 riers serve only as technical protections for the worst and 
 most objectionable forms of justice. The desideratum is a 
 better preparation and education of future magistrates. 1 
 At present only their legal education is considered. If this 
 comprises merely an ordinary knowledge of the statutes 
 and their more or less intricate interpretation, it may well 
 be of secondary importance for the criminal judge. A knowl- 
 edge of men is of prime importance. In place of an off-hand 
 impressionism such as at present characterizes the decisions, 
 there should be substituted, as M. Carnevale demands, a 
 true scientific procedure. Their present technical prepara- 
 tion is presumably adequate to enable them to judge the 
 
 1 See the cautious but well put comments in M. Cruppfs "La Cour 
 d'assises," p. 123, seq.
 
 74] LEGAL INDIVIDUALIZATION 229 
 
 degree of punishment as conditioned by its duration, for 
 this, as before, is still to depend upon the crime and its sub- 
 jective gravity. In this respect any one with a little judi- 
 ciary experience would be competent. 
 
 But the further and serious question relates to the choice 
 of punishment in accordance with the psychological clas- 
 sification of the criminal. In this respect an organized 
 system of individualization will likewise not make the func- 
 tion of the judge any more difficult than it is now under 
 the application of the Berenger law, or as it would be in 
 dealing with the incorrigible classes, if the criterion of incor- 
 rigibility were left to the verdict of the judge, as the Swiss 
 draft provides. This does not imply that at present the 
 procedure is perfect in those exceptional cases such as 
 that of parole in which the magistrates undertake penal 
 individualization. Their education inclines them to pay 
 special attention to the crime; and it is with reference to the 
 crime that they are tempted to grant or refuse parole. This 
 tendency does not appear in the statistics of court decisions, 
 for these do not disclose the motives that have guided the 
 bench in the application of the law of 1891. But this tendency 
 may be inferred from certain criticisms made by the magis- 
 trates against the extension of the Berenger law to certain 
 serious offenses; 1 and likewise from the confusion that tends 
 to prevail between the admission of extenuating circum- 
 stances and the granting of parole, the one being considered 
 as a first step of clemency necessary to pass on to the other. 
 This involves a confusion of principles and points of view. 
 It might well be the case that the offender is worthy of 
 parole, when the crime in itself would not warrant the ad- 
 mission of extenuating circumstances. Different points of 
 view are involved, and a further training in such distinctions 
 
 1 Revue penitentiaire, 1897. p. 491.
 
 230 INDIVIDUALIZATION OF PUNISHMENT [ 74 
 
 is needed. That the distinctions seem to be somewhat 
 delicate and their introduction difficult is no reason for 
 abandoning a worthy procedure or for returning to unwise 
 measures that have proved inadequate. The adaptability 
 of the Gallic mind should readily acquire the needed tech- 
 nical attainments. Although in fifteen years we have not 
 been able to develop a truly scientific 'regulation of pardons, 
 it does not prove that our magistrates are incapable of 
 worthily applying individualization. It proves only that 
 ways and means must be established, and that this cannot 
 be done in a day. Our magistrates, impartial, unquestion- 
 ably honest, and thoroughly trained professionally, are 
 most capable to outline a desirable policy, but a period of 
 tentative experience is inevitable. 
 
 The special difficulty in the application of a system of 
 parole which obtains equally in dealing with extenuating 
 circumstances is the lack of scientific principles of a di- 
 rective conception and point of departure; and this should 
 be decidedly reduced under a system of well-regulated in- 
 dividualization. The present form of individualization is 
 sporadic because it is not organized. An organic and scien- 
 tific individualization must be developed; only when this 
 shall have been done, will our magistrates understand what 
 is expected of them, and meet the expectation. If, for ex- 
 ample, they are authorized to determine punishments for 
 incorrigibles, they will know very well that they must con- 
 sider not alone the last crime committed but the entire life 
 of the individual and everything that may shed light upon 
 his character and temperament. Likewise, if they have 
 at their disposal purely deterrent punishments that make 
 no pretense to a reformatory discipline, they will know that 
 they have to ask only one question: Does the individual 
 stand in need of a reformatory education or not? To face
 
 75] LEGAL INDIVIDUALIZATION 231 
 
 a problem clearly put is a step in advance; indeed, it is the 
 decisive step. 
 
 75. The Proper Education of Magistrates 
 
 The question how the magistrates shall become capable 
 of solving the problem remains. Perhaps a psychological, 
 as well as a legal education is necessary. Could it be other- 
 wise in an issue that is a matter not of handling arguments, 
 but of dealing with the realities of life in a field involving 
 the management of men and the regulation of careers? Are 
 not magistrates, through their profession, engaged daily 
 in psychological problems? Whether they desire it or not, 
 they must consider things psychologically, at first feeling 
 their way by intuition, and later by professional acumen. 
 But judgment of this type they must make and cannot avoid. 
 The mistake consists in not insisting openly and profession- 
 ally that such is their chief function. We ask that they 
 be thus instructed, and that they thus qualify for the ren- 
 dering of decisions. 1 When so qualified their judgments 
 will be sound because based upon sure foundations. Their 
 formal education which now teaches them to look upon 
 the facts uninfluenced by the consideration of the individ- 
 ual, will no longer be at odds with their loyalty to a humane 
 justice, which equally serves the interests of society and 
 leads them to judge the man rather than the deed. At 
 present they practice a compromise, a thinly disguised 
 combination of the two tendencies, and reach results that 
 are satisfactory to no one. To enable them to act for the 
 welfare of human and social justice, a clear and frank allow- 
 ance must be made for both interests and tendencies. Let 
 
 1 See my letter to M. Paul Desjardins on the teaching of law, in Corre- 
 spondance mensuelle de 1'Union pour la verit6 (cahier annexe formant post- 
 scriptum a la troisieme serie des "Libres entretiens": Sur la reforme des 
 institutions judiciaires, 1908).
 
 232 INDIVIDUALIZATION OF PUNISHMENT [76 
 
 them argue in terms of the law in so far as concerns the 
 status of the deed and its objective appraisal; let them in- 
 creasingly consider the subjective element in the appraisal 
 of the subjective gravity of the offense in its bearing upon 
 the severity of punishment, thus at once considering the 
 motive as well as the objective gravity of the crime. Here 
 lies the practical field for concessions such as now obtain 
 between the spirit of legal abstraction and that of psycho- 
 logical observation. Finally in a third respect, that of the 
 choice of punishment, let them consider only the individual 
 and his character. When they come to realize that all this 
 is their function and when the law tells them this in the 
 very manner by which it organizes punishments, they will 
 be in full exercise of their prerogative. The question will 
 be clearly put. We may have full confidence that they will 
 know how to meet it. For the present, it is enough to state 
 the problem. 
 
 76. The Place of the Jury in Individualization 
 
 The problem presents other difficulties in determining 
 the proper division of function between the court and the 
 jury; and it must be recognized that almost all writers and 
 projects that mention individualization or attempt a pre- 
 liminary legal formulation thereof have neglected to con- 
 sider the jury. They have argued as though juries did not 
 and should not exist. The impression obtains that the 
 jury system does not readily lend itself to individualization. 
 In the first place it seems impracticable to commit ques- 
 tions involving psychological analysis to so emotional and 
 impulsive an expression of justice. \ Yet on the other hand, 
 if the power of determining the sentence is withdrawn from 
 the jury (as occurred in 1824 with reference to extenuating 
 circumstances) juries will acquit in a spirit of defiance.
 
 76] LEGAL INDIVIDUALIZATION 233 
 
 There will be the latent conflict between the two judicial 
 factors in the court of review. Possibly the most favorable 
 solution will be to associate with the magistrates (some- 
 what as in the German municipal courts) a second jury of 
 experts appointed to determine the punishment. Such would 
 be composed chiefly of physicians, directors of reformatory 
 institutions, professional educators, and others qualified 
 by their calling to judge and deal with men. It would be 
 not an ordinary but a technical jury, the members of which 
 would be obtained by an eliminative process of successive 
 selections. The ordinary jury, drawn by lot, as at present, 
 would remain the judge of the facts; it would report upon 
 the material circumstances and upon the question of intent 
 and mental condition, but it would render this opinion 
 without any technical fitness. Next a technical jury would 
 determine the punishment and become a jury of individual- 
 ization. Lastly, the court, as at present, would set the 
 term of sentence. 1 
 
 Such a plan involves the admission that the ordinary jury 
 acting without assistance, is not and cannot be the judge 
 of questions of individualization. The point needs no de- 
 tailed proof. The purpose of the jury system is to furnish 
 an approximate safeguard of personal freedom and repu- 
 tation. It has also a second purpose. No mundane social 
 system can hope to attain absolute justice, for all social 
 justice is but a procedure of the social order. Such proce- 
 dure cannot approach an ideal justice that scrutinizes the 
 individual conscience and ascertains the measure of free- 
 dom exercised. When once this is recognized we shall admit 
 that any such pretense will but lead to unfortunate results; 
 we shall recognize that human justice cannot replace divine 
 justice; and that the greatest and fairest satisfaction will 
 1 See note, p. 293, at the end of the chapter.
 
 234 INDIVIDUALIZATION OF PUNISHMENT [ 76 
 
 be given by following the popular conception of justice and 
 the highest approved standards. Society must ever confirm 
 and endorse the conception of justice in the popular con- 
 sciousness, and take no chance of running counter thereto. 
 For these reasons the jury, as a part of such public opinion, 
 in its judgments and considerations, takes account not alone 
 of questions of fact but of prevailing notions of justice; and 
 these likewise shape the verdicts of condemnation or ac- 
 quittal. The jury thus becomes the judge not alone of the 
 evidence but of the general question of culpability; and 
 thereby exercises the dual function just alluded to. If the 
 jury, speaking in behalf of common opinion, confirms the 
 culpability, the cause of personal liberty will have been 
 adequately safeguarded; it will, at all events, have been 
 established that the exercise of justice in accord with the 
 popular conception demands a condemnation. To thus 
 express the popular sentiment is the complete function of 
 the jury. It is not qualified to decide the question of choice 
 and duration of punishment. The jury, representing public 
 opinion, demands a condemnation and obtains it. The 
 determination of the sentence involves technical questions 
 beyond the jury's capacity, and issues in which popular 
 opinion should not decide because it lacks the requisite 
 knowledge. Hence the advisability of associating the jury 
 with the court which is authorized to fix the penalty. 
 
 There remains in the system in vogue the fear of acquit- 
 tals through mistrust or ill-will. That was the reason why 
 in 1832 the decision relating to the admission of extenuating 
 circumstances was assigned to the jury; and it might have 
 been better in that case also to have adopted a compromise. 
 But the procedure authorized in 1832 is still useful, particu- 
 larly if ever there be established an intermediate jury for 
 individualization. As at present the ordinary jury will re-
 
 76] LEGAL INDIVIDUALIZATION 235 
 
 tain the right of admitting extenuating circumstances, either 
 in the present indefinite form or in some more precise form, 
 such as that proposed in the Swiss draft; and such decision 
 will bear upon the extenuation of punishment so far as per- 
 tains to the maximum set by the court. Why then, if the 
 court may assign punishments of different nature and if the 
 choice is not determined by the nature of the offense (as ob- 
 tains in such cases as political offenses, or again in duelling, 
 or in offenses due to negligence), why should not the jury be 
 able to determine the kind of punishment and not merely 
 its term? Assuredly the treatment should not be specified, 
 for that would confer the control of individualization; but 
 if there were an intermediate jury charged with the decision 
 on that count, it could require the court to refer the issue to 
 this special jury. This would be quite simple if but three 
 principal groups of punishment be admitted. Whenever 
 the jury makes no special recommendation, the ordinary 
 common-law punishment would apply, by way of a correc- 
 tive or reformatory punishment. However, the jury may 
 be uncertain as to the choice of punishment. It may be 
 that the defendant is an occasional offender who still remains 
 a worthy man, for whom a different kind of punishment is 
 appropriate, and it may be that he is an incorrigible who 
 should be eliminated. In either case the jury has but to 
 decide that there shall be a reference to the special jury for 
 the choice of punishment. Such division of function would 
 furnish all the necessary guarantees. 
 
 Yet this is but one possible procedure; there are others, 
 and possibly the simplest would be, as is now proposed, to 
 associate the jury and the court in the formulation of the 
 punishment. Whether the last or some other more prefer- 
 able procedure be adopted, it is clear that the difficulty does 
 not lie there. Practical applications, as is always the case
 
 236 INDIVIDUALIZATION OF PUNISHMENT [ 76 
 
 whenever progressive ideals are to be introduced, will de- 
 velop their own institutions, and a practicable system will 
 emerge. The main point is to become convinced of the 
 need of reform and to desire its introduction. We thus 
 reach the commanding consideration: How shall this reform 
 be organized? What are its essential principles?
 
 CHAPTER IX 
 
 JUDICIAL INDIVIDUALIZATION 
 
 77. Older Forms of Individualization. 
 
 78. The Analysis and Place of the Motive. 
 
 79. A Second Interpretation of the Motive: the Psychological Factor. 
 
 80. Difficulties in the Application of the Motive to Punishment. 
 
 81. A Third Interpretation of the Motive: the Moral Status. 
 
 82. Individualization and Political Crimes. 
 
 83. Individualization in the Italian Penal Code. 
 
 84. Principles underlying Individualization: Uniform Punishments. 
 
 85. Legal Individualization for Special Offenses or Circumstances. 
 
 86. The System of Parallel Punishments; Punishment and Social Dis- 
 honor. 
 
 87. The Factors entering into the Classification of Criminals. 
 
 88. A Tentative System of Individualization; Static and Dynamic Crim- 
 inality. 
 
 89. The detailed Classification of Criminals. 
 
 90. Concessions to other Principles. 
 
 91. Special Types of Individualization. 
 
 92. Possible Extensions of Individualization; Relation to Preventive 
 Measures. 
 
 77. Older Forms of Individualization 
 
 WE shall now undertake a brief survey setting forth the 
 basis on which judicial individualization shall proceed. This 
 question cannot be solved independently. It is indissolubly 
 bound up with a series of problems that relate to the regula- 
 tion of punishment. Since individualization implies the in- 
 troduction of punishments of a different character for the 
 different kinds of criminals, a two-fold problem arises: first, 
 to establish a classification of criminals; and second, to de- 
 termine the punishments appropriate to the several classes. 
 
 Let us review the principal measures that have been pro- 
 
 237
 
 238 INDIVIDUALIZATION OF PUNISHMENT [ 77 
 
 posed in favor of permitting the judge to apply the most 
 highly individualized punishments. 
 
 We begin with the principle which makes the extenuation 
 or aggravation of the punishment depend upon the motives 
 of the crime. This theory or system of "motives" l has been 
 somewhat vaguely outlined in several modern legislations and 
 projects; and it has received a precise and scholarly formu- 
 lation in the Swiss preliminary draft, particularly in its first 
 form. 2 
 
 The Swiss preliminary draft does not adopt the French 
 system of wholly indefinite extenuating circumstances, which 
 commits their determination solely to the judge. It was 
 held that this would make the extenuating circumtances 
 play a double rdle, of which the second was that of grant- 
 ing a reduction of the legal punishment solely because, under 
 the law, it seemed excessive. This was not compatible 
 with the spirit of a new penal code, which, shaped by the 
 demands of public sentiment, could not further limit the 
 formulated consensus. It may be replied that codes once 
 formulated do not change, while public opinion does; and 
 that popular notions in regard to criminality may thus 
 quickly come to be out of relation with the penalties of the 
 code. The scale of penalties is based upon the social gravity 
 of each infraction; and naturally according to the times 
 and customs, a different conception will prevail. If punish- 
 ments are to be neither too lenient nor too severe but re- 
 main in satisfactory accord with popular sentiment, there 
 must be ways of maintaining the punishment at such a 
 level. Ballast and a safety-valve must be provided. Exten- 
 uating circumstances in an indefinite form are well designed 
 
 1 See the work, previously cited, of Holtzendor/, "Das Verbrechen des 
 Mordes und die Todesstrafe." 
 
 1 " Avant-projet Suisse," first edition, art. 37, and art. 39.
 
 78] JUDICIAL INDIVIDUALIZATION 239 
 
 for this service. However, it may ensue that in regard to 
 certain offenses the legal punishment will be deemed too 
 severe even in the absence of condoning motives; and such 
 bias will lead to acquittal. The Swiss preliminary draft in 
 the scale of its penalties has not considered this point. It 
 admits only specific extenuating circumstances. It holds 
 that the law should arrange the different causes of extenua- 
 tion or aggravation in very general classes. Accordingly it 
 provides, particularly in its first form, a legal classification 
 of the different motives that may give rise to crime. Ac- 
 cording as these motives imply a certain measure of per- 
 sisting virtue, or on the other hand a deeper degree of 
 perversity, the motive becomes a ground of extenuation 
 or aggravation. 
 
 It is quite right that the consideration of the motive should 
 affect the term, and through it the degree of punishment. 
 But if it goes no further, the system is not adequate. The 
 fixing of the term of the punishment in effect involves the 
 determination of its character; and the point at issue is pre- 
 cisely whether the motive is a sufficient criterion whereby 
 to determine the nature and the details of the punishment. 
 For that purpose a true conception of the motive and what 
 it involves is indispensable. Liszt has contributed a very 
 acute and penetrating analysis of status of motives, 1 the 
 influence of which will appear in the exposition to follow. 
 
 78. The Analysis and Place of the Motive 
 In the sense commonly used the motive is confused pri- 
 marily with the purpose sought, the end which the criminal 
 
 1 Liszt, "Die psychologischen Grundlagen der Kriminalpolitik," in his 
 Review (Zeit.f. d. ges. Str, R. W., 1896, p. 477, particularly p. 483, seq.); and 
 Kraus, "Das Motiv zur psychologischethischen Grundlegung des Strafrechts" 
 (same Review, 1897, p. 467, seq.). Also the thesis, cited above, of M. Legrand, 
 "De la premeditation," p. 186, seq., and that of M. Rigaud, "De 1'influence 
 du motif," p. 7, seq.
 
 240 INDIVIDUALIZATION OP PUNISHMENT [ 78 
 
 had in mind. Take the case of a man who has killed another 
 for purposes of robbery; robbery is then said to be the mo- 
 tive of the murder. Or take the case of an heir who poisons 
 the man from whom he is to inherit; the motive of the crime 
 is prematurely to secure the inheritance. In another in- 
 stance a man sets fire to his house in order to obtain the 
 insurance; or a thief breaks into the safe of a bank to pay 
 his gambling debts. Such cases may be indefinitely varied. 
 The motive is the advantage to be gained from committing 
 the crime. Thus considered, the motive has no real value 
 in criminal law except as a symptom. It serves to complete 
 the account of the crime as planned; it illuminates and in- 
 terprets it. It sets the crime in proper relation to the pur- 
 pose of the criminal, for a crime is never an end in and by 
 itself; it is almost always a means to effect a more remote 
 purpose. Except under the sway of a purely diabolical pas- 
 sion, murder is not committed for the sake of killing; mur- 
 der is a means to effect a definite purpose, and this purpose 
 is the true end of the culprit. It is that which dominates the 
 act. For the criminal resolve, meaning thereby the volun- 
 tary act that consummates the crime, never furnishes an 
 adequate conception of the crime. The legal view of the in- 
 tent detaches the crime from the true will of the individual, 
 making it an independent act of will, while actually it is 
 only a factor in an integral whole; and in the totality the 
 commanding idea is the final purpose. Take the case of a 
 thief caught in the act. To avoid arrest or prosecution he 
 commits murder. Clearly as a deliberate intent he had no 
 design of murder. He would not assassinate in cold blood. 
 His purpose was to escape the police and the trial. To es- 
 cape, it was necessary to get rid of a witness, and for that 
 he had to murder; and so he committed the murder. The 
 whole tragedy occurred in a moment; the three successive
 
 78] JUDICIAL INDIVIDUALIZATION 241 
 
 acts of will were instantly conceived and merged. The 
 whole action expressed a single will; the steps were acts of 
 will, determined by the purpose designed and accepted; 
 they followed upon it. To understand and judge the crime, 
 the situation as a whole with its psychological setting must 
 be reproduced. The act of will must be regarded as a whole, 
 and the part which the crime played therein duly noted. 
 The purpose dominates the act. Clearly, however imper- 
 fectly, the purpose alone reveals the character of the agent. 
 Yet without other considerations it would be totally inade- 
 quate to serve as the basis of a psychological classification 
 of criminals. Let us consider the situation more in detail. 
 
 Take the case of a man who poisons the person from whom 
 he expects to inherit. This is a sign of avarice, a greed for 
 money. But the world is full of people thus affected, who, 
 fortunately, are quite incapable of committing murder to 
 satisfy their desires. The analysis of the case thus involves 
 a step beyond this simple desire for wealth and gain; it must 
 include all the motives associated with the purpose of the 
 crime. Take the example of a faithless cashier who ap- 
 propriates trust funds to pay a gambling debt. This is an 
 abuse of confidence. What follows from the motive of the 
 theft is that the cashier was possessed by the feeling that a 
 gambling debt is a debt of honor, that must be paid at all costs. 
 The majority of gamblers share this feeling without thereby 
 becoming dishonest. To wish to pay one's debts, even if they 
 are not gambling debts, is an honorable desire. If this prin- 
 ciple goes so far as to lead to an act of indiscretion, a further 
 examination of the chain of motives becomes necessary. It 
 at once becomes clear that this desire to pay one's debts is 
 not the definite purpose that determined action, for if this 
 feeling is strong enough to lead to theft, it indicates that 
 beside the desire to discharge an obligation there was the in-
 
 242 INDIVIDUALIZATION OF PUNISHMENT [ 78 
 
 direct or more immediate purpose of escaping arrest, ruin, or 
 dishonor; and it is this final purpose that counts. But how 
 does this final purpose enlighten us in regard to the criminal- 
 ity of the agent? Everybody, even the most honest of us, 
 wishes to avoid ruin and dishonor; yet most men would be 
 wholly incapable of committing theft to avoid such a ca- 
 lamity. To induce one to steal involves the presence of 
 an additional quality, the possibility of bringing to the sur- 
 face a tendency to dishonesty (the improbita of Garofalo), 
 which in turn may be quite momentary and incidental, or 
 may be a fundamental trait of character. An intense desire 
 to escape ruin brings to the surface a dishonest streak, or, 
 possibly, it discloses an underlying, latent trend of dishon- 
 esty ready to assert itself; and for the moment this dishonest 
 tendency takes possession and overcomes all opposition. It 
 is responsible for the action, and in it lies the mainspring of 
 the crime. Yet clearly the purpose sought in the act in no 
 manner reveals the existence of this dishonest streak. 
 
 Yet in the second example above given, that of murder, 
 it appears that the motive is somewhat different from that 
 in the other cases. In the case of the man who murders for 
 money, the incentive, apparently, is greed; and the motive 
 thus reveals an innate quality or trait. Yet this inference 
 may be superficial. At all events the purpose for which the 
 murderer wanted money is an essential consideration. It 
 may be for the same reason that obtained in the case of the 
 cashier, namely, to pay a gambling debt, or to avoid arrest 
 and ruin. The complete account requires the attempt to 
 find the motive for the motive; and even then we do not 
 reach a motive that may serve as an adequate criterion of 
 the subjective criminality of the agent. What we really 
 find are two resolutions of a criminal character, one follow- 
 ing upon the other, both demanding for their comprehension
 
 79] JUDICIAL INDIVIDUALIZATION 243 
 
 the consideration of yet further motives, which the end in 
 view as above considered does not disclose. Thus the truly 
 final purpose is to avoid arrest and ruin; and that necessi- 
 tates robbery. Accordingly, it must be made plain through 
 what trait of character the decision to steal becomes effec- 
 tive. It appeared, moreover, that to accomplish the theft, 
 it became necessary to murder. It must similarly be ex- 
 plained upon the basis of what trait of character the deci- 
 sion to murder became effective. The trait which explains 
 the murder may be not at all the same as that which explains 
 the theft. The final purpose, which is to avoid arrest and 
 to find the wherewithal to pay one's debts, gives no hint 
 of these complex traits of character. Thus, once more, the 
 final purpose becomes a motive which is quite non-committal 
 in its bearing upon the conception of criminality. It reveals 
 nothing essential in regard to the criminality of the agent. 
 To be thus serviceable a motive must be reached that un- 
 mistakably discloses a distinctive trait of character. Thus 
 stealing for the professional thief is a business and he steals 
 for the sake of stealing; his purpose is to get a living at 
 the cost of others. The alleged motive has no other value 
 than as a symptom and index of the lack of honesty, of the 
 existence of the anti-social tendencies of the thief. From 
 the penal point of view this trait of character, this condition 
 of latent criminality, is the important thing. It constitutes 
 the true motive to be considered; while the end pursued is 
 to be taken into account only as an expression of the criminal 
 state of mind. 
 
 79. A Second Interpretation of the Motive : the Psycho- 
 logical Factor 
 
 For purposes of punishment the motive in the sense first 
 considered has no real significance; and that for two reasons:
 
 244 INDIVIDUALIZATION OF PUNISHMENT [ 79 
 
 first, that commonly it reveals nothing in regard to the 
 criminal; and second, that when it reveals a criminal trend, 
 it is this trend, not the manner of its expression, that forms 
 the essential basis of the criminality. We thus reach a 
 second conception of motive which, in effect, agrees with 
 that adopted by the Swiss preliminary draft. 
 
 This analysis shows that the purpose sought for ex- 
 ample the desire to get money or to avoid ruin is not in 
 itself criminal. Before such a purpose leads to crime, it 
 must arouse or bring into play the impulse or trait of char- 
 acter or latent tendency that makes one resort to a criminal 
 measure. A man in desperate straits may feel a growing 
 desire to steal. He knows very well that he is contemplating 
 a dishonest action, but the moment that the thought of 
 theft is lodged in his mind the original purpose thereof drops 
 out of sight. At first his one thought is to find money; later 
 this vague and remote purpose becomes specialized, and 
 takes a definite form; it appears as the thought of the im- 
 mediate step to be taken, which is the act of theft. His 
 entire reflection leads to this fixed idea of theft, and pres- 
 ently this engaging consideration brings into play impulses 
 that are new in his experience in that they are not concerned 
 with finding money in honest ways. There then ensues a 
 contest between the instinct of uprightness and honesty, 
 and its opposite, the suggestion that the duty of honesty 
 may be set aside. The first suggestion of this possibility 
 acts subconsciously, and, as it grows, it takes possession 
 of the man, and finally, if it prevails, becomes the decisive 
 and determining factor of the act. Psychologically the 
 immediate cause of the criminal act is not the advantage 
 to be gained, but the impulse or trait of character, which 
 in turn yields to a general temptation rather than to the 
 suggestion of a specific act. Such feelings or instincts form
 
 79] JUDICIAL INDIVIDUALIZATION 245 
 
 the true mainspring of the act. If the desired advantage 
 had not awakened a criminal or immoral tendency the crim- 
 inal act would never have been committed. An honest man, 
 however urgently in need of money which he seeks in every 
 legitimate way in the pursuit of his purpose, will never 
 entertain the thought of stealing. Such a thought comes 
 forward only if under the pressure of necessity it appeals 
 to a latent tendency, which is allied to the impulse of dis- 
 honesty or criminality. 
 
 This psychological factor constitutes the motive in the 
 second sense of the word. In place of considering the con- 
 templated purpose which served to arouse and stimulate 
 the inherent criminal tendency, it is the psychological factor 
 thus aroused by the end in view that must be taken into 
 consideration and regarded as the real motive. 1 The motive 
 in the second sense may thus be defined as the reaction 
 aroused by the final purpose which the agent has hi view 
 and which becomes the immediate and psychological cause 
 of the criminal action. It is in this sense that the Swiss 
 draft interprets the motive. Thus the first draft cites as 
 a cause for the aggravation of punishment such circum- 
 stances as that the action was done through baseness of 
 character, through deviltry, brutality, trickery, vengeance, 
 greed, malice, or pleasure in crime. These motives as gen- 
 eral grounds for aggravation were withdrawn from the second 
 draft, but they reappear with reference to particular crimes 
 or offenses, such as murder (Art. 52) or injury to property 
 (Art. 79). As extenuating motives the Swiss draft speaks 
 of honorable motives; the first draft calls them refined 
 motives. The expression appears somewhat extreme as 
 applied to a crime or misdemeanor. It seems out of place 
 to speak of a crime as incited by refined or exalted motives. 
 1 Liszt, "Die psychol. Grundlagen der Kriminalpolitik " p. 486.
 
 246 INDIVIDUALIZATION OF PUNISHMENT [ 79 
 
 It seems better to speak of them as honorable motives. 
 Perhaps it would have been better, as was proposed in the 
 commission, to use a negative form, and speak of motives 
 that carry no dishonor or imply no degenerate trait. At 
 all events it is evident that in all cases it is not the final end 
 sought but the tendency or psychological factor which this 
 purpose arouses or stimulates, that becomes the determining 
 cause of the crime. 
 
 Here we are clearly in presence of a psychological fact 
 that has a real value for penology, but its precise value is 
 difficult to determine. The same objection as applies to 
 the acceptance of the final purpose as a criterion may again 
 be urged; namely, that such tendencies may exist apart 
 from any criminal manifestation, and that thus they cannot 
 be considered as necessarily containing the germ of a crim- 
 inal trait. It is true that one may have a low character, 
 be moved by feelings of vengeance or greed, without neces- 
 sarily becoming criminal; and if, as the Italian school holds, 
 punishment has no other end than the prevention of the 
 repetition of crime, one could hardly accept the presence 
 of a tendency to vice or greed as a probable indication of 
 its becoming a source of crime in the future. Further evi- 
 dence would be needed: it would have to be determined 
 whether this tendency is strong enough to bring about a 
 further criminal action, and, assuming it to be so, whether 
 it would induce the habit of crime, or whether, perhaps, it 
 may not in the first instance have been the issue of a pas- 
 sionate and momentary outburst under the pressure of cir- 
 cumstances; and secondly, it would have to be determined 
 whether this psychological factor, supposing it sufficiently 
 powerful to induce the habit of crime, was innate or at least 
 antedated the crime committed, or whether it was incited 
 solely by the momentary purpose entertained. In the one
 
 80] JUDICIAL INDIVIDUALIZATION 247 
 
 case there is a chance that this psychological factor will 
 not reassert itself; in the other it forms part of the nature 
 of the individual and must be treated as a permanent menace. 
 These two proofs are in no way furnished by the existence 
 of a tendency to greed or to evil passion as an efficient cause 
 of crime. 
 
 80. Difficulties in the Application of the Motive to 
 Punishment 
 
 If this view is valid, this second conception of a motive 
 will likewise fail to furnish a scientific classification of crim- 
 inals, or at least fail to indicate the kind of punishment 
 suitable to the individual. It is important to recognize 
 that to be of service to penology by prescribing the char- 
 acter of punishment, this second conception of the motive 
 must be developed more thoroughly. In proof thereof con- 
 sider that it may well happen that wholly debased natures 
 may at times commit crimes incited, to use the language 
 of the Swiss draft, by honorable motives. Take the case 
 of a professional criminal, a thief who, perhaps, has already 
 been guilty of murder. He is led to commit a murder with 
 the sole motive of preventing an evil deed. He is witness, 
 for example, of a fray, in the course of which one of his com- 
 panions calls upon him to commit a dastardly attack, 
 let us say that he proposes to assault a woman. The pro- 
 posal arouses a feeling of moral revulsion. Considering 
 what he is, this is clearly a generous sentiment. He may 
 have the courage to come to the defense of the threatened 
 victim and attack the fellow. If hi the course of the fight 
 he strikes a hard blow that kills his companion, he may 
 have a legitimate defense; but if, in place of this, he takes 
 him by surprise from behind and kills him in cold blood, 
 knowing full well that he is attempting and committing a
 
 248 INDIVIDUALIZATION OF PUNISHMENT [ 80 
 
 murder, then there will be no desperate situation, no legiti- 
 mate defense to justify the crime. It becomes a clear case 
 of murder. Yet it is proper to take account of the feeling 
 of generosity that enters into such a case to mitigate the 
 punishment. But suppose that the judge has at his disposal 
 different kinds of punishment, some designed for those by 
 nature honest who have no need of reformation, others 
 designed for perverts whose re-education is to be attempted. 
 It may indeed be extremely unwise by reason of the motive 
 that accounts for the crime, to apply to an offender, who 
 is a professional and at bottom an evil-doer, a discipline 
 arranged for accidental offenders who stand in no need of 
 reform. It would be a serious error to make capital of this 
 sentiment of generosity as though it were a part of the ha- 
 bitual nature of the individual and to treat him as one un- 
 acquainted with any criminal impulse. 
 
 Conversely, one may suppose a respectable man by chance 
 yielding to a low and vicious impulse; in this spirit, the 
 Swiss draft deliberately places greed among the grosser 
 impulses that aggravate punishment. Consider once more 
 the case of the cashier who after a long career of honesty is 
 led into a breach of confidence under the pressure of cir- 
 cumstances which have called forth a feeling of momentary 
 but irresistible greed; we there decide it proper, if this im- 
 pulse is a vicious one, to increase the punishment and im- 
 pose the maximum sentence. But if the judge is convinced 
 that he is dealing with a man momentarily led astray, in- 
 trinsically honest, would it be just to impose upon him a 
 punishment designed for perverts, and suitable only to the 
 worst types? Punishment of that kind tends to lower and 
 debase morals rather than to maintain them. 
 
 It thus appears that the motive in the second sense of 
 the word may well serve as the criterion for the degree of
 
 80] JUDICIAL INDIVIDUALIZATION 249 
 
 punishment, and yet remain inadequate to determine its 
 nature and discipline. 1 It takes into account a momentary 
 impulse and gives evidence only of the state of mind at the 
 moment of the crime, and this momentary, transitory, and 
 quite artificial aspect of the man is not sufficient as evidence 
 of his true and general character. The feeling which he 
 shows at the moment of the crime may be an exceptional 
 condition, and in assigning his treatment according to the 
 indications of this momentary condition there is danger of 
 a radical mistake. 
 
 One may even go further. Very often, indeed, it would 
 be wholly false to judge the morality of an act according 
 to the sentiment that the purpose sought calls forth, with- 
 out taking account of the latter. It has been seen that the 
 purpose sought leads to crime only if the desire for it is 
 supported by a criminal trend strong enough to induce the 
 crime. This pressure must be such as to replace, at least 
 momentarily, the man's sense of honesty, which until then 
 was his true nature, by a sense of dishonesty. This is per- 
 fectly correct; but what is often quite false is to appraise 
 the deed solely according to this dishonest impulse, to the 
 neglect of the external pressure and the purpose that gave 
 rise to the crime. For that, one must return once more to 
 the example of the faithless cashier who stole to cover his 
 obligations. Evidently there was a moment when the feel- 
 ing of honesty was replaced by its opposite, by the decision 
 to use fraudulent means, the willingness to become an in- 
 strument of fraud. But shall one say that this feeling, which 
 in itself is low and perverse, should determine his character 
 and his moral status in regard to the act committed? To 
 use the terms of the Swiss draft, shall one say that this man 
 stole because of greed? That would seem to be quite im- 
 1 See Kraus, cited above, p. 481.
 
 250 INDIVIDUALIZATION OF PUNISHMENT [80 
 
 possible, because what here prevailed was the more remote 
 purpose; and without this necessity to avoid ruin at what- 
 ever cost, the fraudulent impulse would never have entered 
 into the mind of the unfortunate miscreant. It would be 
 otherwise only if the feeling in favor of fraud and dishonesty 
 had existed before the development of the situation which 
 gave it the occasion to appear in a specific form. 
 
 Indeed, even when the case is one that indicates a crim- 
 inal act and independently of the question of determining 
 the penal treatment the dominant impulse of the crime 
 is to be considered only if it were present in the criminal 
 in a latent form previous to the crime; and if, furthermore, 
 it came to be the dominant cause of the crime, while the 
 purpose sought was only its occasion. We must accordingly 
 return to the terms of the proposition that served as our 
 former formula, if we wish to find a motive that may be con- 
 sidered as a criminal impulse, as the dominant motive of 
 the criminality of the act, which in turn may serve to char- 
 acterize it in terms of crime and to assign it its place in the 
 scale of subjective criminality. 
 
 The final purpose, we say, determines the criminal im- 
 pulse; and this impulse, in turn, determines the crime. Yet 
 very commonly the reverse is true. It is the perverse im- 
 pulse that determines the end to be gained and incites it; 
 and it is the end that becomes the immediate occasion of the 
 crime. Thus in case of the person who became an incendiary 
 to obtain the insurance, it is not his necessity to get this 
 money that aroused his feeling of greed; this was already 
 present and urged him to attempt to obtain money by means 
 of a crime. The same is true for the majority of cases of 
 theft. Even in cases of murder involving brutality and 
 cruelty and vengeance, these are sentiments that existed 
 antecedent to the end sought; or rather, this end tended
 
 81] JUDICIAL INDIVIDUALIZATION 251 
 
 to satisfy these feelings. But these feelings may be said to 
 be the true motive of the crime only under the supposition 
 that the feeling of wanton lawlessness, which is sympa- 
 thetic to crime, has given rise to the particular plan fol- 
 lowed. This is no longer true when the feeling is but a 
 reflex emotion that arises after the undertaking has begun 
 and is incidental to the purpose sought. In order that the 
 motive, in the second sense of the word, may be regarded 
 as the determining cause, it must be merged with the end 
 sought, and the crime must have no other object than to 
 give satisfaction to this feeling of dishonesty, of perversity, 
 or of cruel and savage passion, that existed before the 
 crime at least in a latent form and in this form became 
 part of the real nature of the criminal's personality. 
 
 81. A Third Interpretation of the Motive; the Moral 
 
 Status 
 
 We here come upon a third conception of motive. The 
 motive is no longer the psychological factor aroused by the 
 end to be gained which has become the immediate cause 
 of the crime; it is the essential quality of the moral char- 
 acter, the satisfaction of which stands as the final purpose 
 of the crime to be committed. Possibly this is the meaning 
 of the Swiss draft; in speaking of a murder incited by 
 cruelty or vengeance, it interprets that the murder was 
 committed to satisfy this impulse of cruelty and desire for 
 vengeance. 
 
 We thus reach the conclusion that the motive which 
 penology must particularly consider is that embodied hi 
 the psychological factor that incited the crime and gave 
 it its dominant character. It is the motive thus specified 
 that nearly always serves to indicate the objective crim- 
 inality of the act. It supplies the judge with one of the
 
 252 INDIVTOUALIZATION OF PUNISHMENT [ 81 
 
 surest criteria of judgment in regard to the degree of pun- 
 ishment, and consequently of its duration. 
 
 In a theory that does not admit individualization based 
 upon responsibility there is needed an individualization 
 based upon the subjective criminality of the action: that is, 
 upon the criminal act taken as a whole with all its psycho- 
 logical causes and judged as a unity and a totality. Punish- 
 ment in regard to its duration should have two standards 
 of measure: an objective and legal standard, according to 
 the social gravity of the crime abstractly considered, and a 
 subjective standard, derived from the criminality embodied 
 in the action, which in turn is determined for the most part 
 by the nature of the emotion or the moral factor which 
 inspired the crime. 
 
 The value of the motive considered as a criterion of the 
 subjective criminality of the act is thus established. It 
 may be added that even in the third sense the motive is not 
 the exclusive factor to be taken into consideration: which, 
 in turn, may be thus made clear. One may suppose a mur- 
 der incited by a motive that is not a perverse impulse, let 
 us say a feeling of righteous indignation. Brutality does 
 not enter, although the murder may have been committed 
 under conditions that indicate a decided cruelty. Here 
 the indignation brought forward the brutality, not alone 
 such brutality as every intentional homicide implies and 
 which may be assumed if one is capable of murder, but a 
 peculiar brutality, quite irrelevant as a determining cause 
 and foreign to the execution of the act, but evidenced in 
 the refinement of the suffering inflicted. Would it be proper 
 to say, in terms of motive, that there is present in this case 
 but a weak degree of subjective criminality? Is it proper 
 to speak of the honorable motives that the Swiss proposal 
 admits? In short, side by side with the motive, must one
 
 82] JUDICIAL INDIVIDUALIZATION 253 
 
 not take account of the means, in order to present not alone 
 the material circumstances of the deed but its subjective 
 criminality? Surely, the most honorable murder explain- 
 ing this combination of terms by the interpretation already 
 given to it if vitriol is used in perpetrating the crime, is 
 proven to be the act of a low and base criminal. 
 
 Thus considered the motive itself remains wholly inade- 
 quate to determine the subjective criminality of the act. 
 If the act is to be characterized in terms of its prevailing 
 sentiment, account must be taken of the entire complexity 
 of impulses disclosed by it, which as a whole constitutes the 
 moral nature. The subjective criminality of the act is the 
 act considered in its psychological origin, and at the same 
 time it is an expression of the feelings leading to its execution. 
 It is the psychology of crime and of the particular crime 
 judged by its causes and the manner of its execution. 1 
 
 82. Individualization and Political Crimes 
 
 The conclusion thus reached brings us merely to the de- 
 termination of the scale of punishment. In the present 
 issue this is but the secondary aspect of criminology; the 
 main and serious problem is to determine upon what basis 
 to differentiate suitable punishments and how to assign 
 the proper punishment to each case. 
 
 To accomplish this the attractive plan of affording the 
 judge several kinds of punishment differing in their char- 
 acter and discipline has been proposed; whatever the of- 
 fense, the judge may thus have available two different kinds 
 of punishment for any individual case. There will be two 
 scales of punishment; and according to the character of 
 the agent the judge can place him in one or other of the two 
 
 1 See Stooss, "Das Motiv im Entwurf zu einem schweizerischen Strafge- 
 setzbuch" (in the Revue ptnale suisse, 1896, p. 167, seq.).
 
 254 INDIVTOUALIZATION OF PUNISHMENT [ 82 
 
 groups. This has been designated as the system of parallel 
 punishments. 1 
 
 That the requirements of modern individualization lead 
 directly to the admission of a system of parallel punish- 
 ments is clear. The difficulty lies in determining the basis 
 upon which the judge shall assign one or the other type. 
 Those favorable to the plan have found no other basis of 
 distinction than that of the motive. The motive, as above 
 interpreted, thus sets the standard for the term of punish- 
 ment and determines as well its character and discipline. 
 This conclusion must be carefully examined. Let us inquire 
 into the nature of the doctrine of parallel punishments. 
 
 The criminologists who originated the theory started 
 from a well-known precedent: the recognition, with reference 
 to the material crime, of two standards of punishment, the 
 one applicable to political crimes and the other to crimes 
 of common law. The suggestive principle thus introduced 
 is capable of considerable development. The social gravity 
 of political and common-law crimes may be identical. In- 
 deed, objectively the political crime often carries graver 
 consequences than the common-law crime; for the latter 
 carries direct injury only to a single individual. As political 
 crimes disclose a different type of impulses it has been held 
 that the character of the punishment should be different. 
 Dostoiewsky's "House of the Dead" will acquaint one with 
 the effect of promiscuous association of different kinds of 
 offenders. Political offenders, those guilty of military in- 
 
 1 The main contribution to this question is the learned report of M. 
 Gorgon to the Societe generate des Prisons: "Les peines non deshonorantes," 
 in the Revue penitentiaire, 1896, p. 830, seq. See also a symposium upon the 
 question, contributed by a number of criminologists, whose opinions are 
 published in the Revue pfaitentiaire, 1896, p. 1099, seq.; p. 1407, seq.; and 
 Annee 1897, p. 144, seq. See also the thesis, previously cited, of M . Rigaud, 
 p. 49, seq.
 
 82] JUDICIAL INDIVIDUALIZATION 255 
 
 subordination, and common criminals are thrown together 
 in the same prison. This abuse is the best possible plea in 
 favor of parallel punishments. 
 
 In differentiating the punishments of political criminals 
 it was the criminal and not the crime that was considered. 
 It was deemed unjust to subject the political offender to 
 the same kinds of punishment as were provided for ordinary 
 criminals, for such are regarded by the law as infamous. 
 Political punishments are intended to be deterrent and by 
 their severity and length to discourage plotters, while like- 
 wise they are regarded as measures of public welfare to 
 hold agitators in check, but they were not intended to be 
 infamous. The terms "infamous" and "non-infamous" 
 refer only to the nature of the discipline and the attitude 
 of public opinion. They do not necessarily refer to the 
 weaknesses which occasioned the punishment, continue even 
 after its execution, and are considered as true derelictions, 
 either political or personal. All that has nothing to do with 
 the notion of infamy. It is directed to the removal of a 
 danger. For whether or not a punishment is infamous, a 
 man who has been sentenced is regarded as a transgressor, 
 as lacking in certain respects. To entrust him with a re- 
 sponsible position and place him in charge of the moral 
 education of others would be a public danger; and the same 
 applies to the restoration of his political rights without 
 further evidence. While definitely eliminating the idea of 
 disgrace we do not necessarily imply that all minor disabil- 
 ities should be cancelled, and hi proof thereof it is the case 
 that political punishments, while not regarded as infamous, 
 involve minor disabilities. 1 These appear in the conditional 
 sentence, which is especially intended to avoid every im- 
 
 1 For "infamy," in Anglo-American law, see Professor Henry SchqfieUTa 
 note in the Illinois Law Review, Vol. V, 1911. ED.
 
 256 INDIVIDUALIZATION OF PUNISHMENT [83 
 
 plication of disgrace, yet which deprives the man under 
 sentence, at least during his period of probation, of the 
 exercise of his political rights. This distinction is quite 
 definite. 
 
 83. ludividualization in the Italian Penal Code 
 
 We come now to the statement of the principle. But 
 are the political criminals the only offenders who are likely 
 to arouse interest? Common-law criminals do not all inspire 
 the same aversion; there are some whose crime does not 
 disclose any previous perversity. The Swiss draft assumes 
 the existence of crimes committed for "honorable" motives. 
 Obviously, among so-called crimes of passion, there are 
 some that do not imply the perversity of the agent. Cer- 
 tain cases of homicide, from the ethical standard, approx- 
 imate closely to cases of legitimate self-defense. Honor 
 must be defended as well as life. The court proceedings 
 show such cases as that of a father defending the honor of 
 his daughter. Strictly speaking, justice must apply the 
 law to such cases, but is it proper to regard persons thus 
 involved as on a level with common murderers and subject 
 them to the same punishment, not merely in length of term 
 but in discipline? This is opposed to every sense of justice. 
 
 One of the first attempts thus to establish distinctions 
 among offenders with reference to the application of pun- 
 ishment was made in the preparation of the Italian penal 
 code. This was one of the most fruitful innovations ac- 
 cepted and developed by the penal code of 1889. This 
 indebtedness should be clearly acknowledged. 1 One of the 
 numerous proposals and drafts advanced two scales of pun- 
 ishment by imprisonment. The one entailed a discipline 
 
 1 See the interesting and detailed study of Ugo Conti (Supplemento alia 
 Rivista perude, vol. V, fasc. 3-4) : " I moventi a delinquere e il Codice 
 penale italiano."
 
 83] JUDICIAL INDIVIDUALIZATION 257 
 
 far more rigorous and of a different order from that pre- 
 scribed for the other, but instead of deciding the punishment, 
 as in France, wholly according to the objective gravity of 
 the offense, it was the purpose to apply it in accord with 
 the subjective criminality of which the criminal gave evi- 
 dence. It was thus that deportation and detention were 
 reserved for political transgressors and for so-called crimes 
 of passion, / reati politici e d'impeto. 1 This occurs in 
 the draft of 1866. This draft met the fate of many legis- 
 lative constructions; it was the subject of many changes and 
 was replaced by other drafts. The principle of parallel 
 punishments survived these parliamentary vicissitudes. 
 
 In the draft of Mancini it assumed an interesting form. 
 This permitted the judge to take account of motives and 
 to substitute one punishment for another. Such substi- 
 tution was made, not as in France, by reason of extenuating 
 circumstances which would warrant only a change in sever- 
 ity of punishment, but it permitted the substitution of a 
 totally different type of discipline, even a discipline of an 
 entirely different nature and character from the punish- 
 ments prescribed by the law. It is true that in France, 
 according to our system of extenuating circumstances, one 
 discipline may be substituted for another; thus penal servi- 
 tude may be substituted for hard labor, or hard labor for 
 corrective imprisonment, but in the operation of this sub- 
 stitution the law considers only the presumptive severity 
 of the discipline. It regards penal servitude as more rigorous 
 than hard labor, and in cases of extenuating circumstances 
 it is authorized to substitute one discipline for another. 
 This is really a mistake, and those who have to undergo the 
 punishments often think differently. They prefer the work 
 out-of-doors in a colony, in a new environment, where the 
 1 See Conti, cited above (special impression), pp. 10-11.
 
 258 INDIVIDUALIZATION OF PUNISHMENT [83 
 
 echoes of the normal life they have led and others are leading 
 does not reach them, to the prison work-rooms which they 
 never leave. It should be added that the penal code in pre- 
 scribing penal servitude and in determining the relative 
 scale of punishments, considered only the old-type convict 
 prisons; indeed, the discipline in these was naturally 
 different in severity from that obtaining in our jails. The 
 introduction of deportation in 1854 changed this, so much 
 so, that, in spite of the edicts of 1891 and others that have 
 attempted to re-establish the legal proportion, the order 
 of preference is now inverted. Those concerned once more 
 prefer penal servitude to hard labor. This indicates the 
 spirit in which these distinctions of discipline were estab- 
 lished. They were not designed to differentiate criminals 
 in natural groups but to punish crimes according to their 
 gravity. It may be said that penal servitude, hard labor, 
 and even reformatory imprisonment were designed for per- 
 sons of the same type. It is a fact that the more deserv- 
 ing characters are found among those deported and among 
 convicts, rather than among the ordinary prisoners. When 
 the law, by reason of extenuating circumstances, permitted 
 a change of discipline, it was done solely to make the pun- 
 ishment less severe because it considered the crime as less 
 serious. It was not done to afford the convict a discipline 
 better adapted and more appropriate as a means of restor- 
 ing him more certainly to a moral plane, or as an additional 
 guarantee against the contamination to which he was ex- 
 posed. Indeed, the contrary was more nearly true. 
 
 The several Italian proposals referred to have a different 
 trend. The purpose of permitting the judge to substitute 
 one punishment for another was not only to lessen the rigor 
 of the discipline but to give it a different direction and char- 
 acter. The substituted punishment was not merely lighter
 
 83] JUDICIAL ENDIVIDUALIZATION 259 
 
 but was designed for those who were not perverts and were 
 to be punished without, however, involving their social 
 degradation, without dishonoring them in the eyes of their 
 fellow-citizens. Most of all were such offenders to be sepa- 
 rated from congenital criminals. Without following the 
 several changes which the Italian draft underwent, let us 
 briefly review the final form of the provision. 
 
 The system adopted was composite; and the offenses were 
 arranged in three groups. For some the only punishment 
 set by the law was hard labor, a common-law punishment; 
 for others the law provided only detention, a special punish- 
 ment; and, thirdly, the law permitted the choice between 
 the two. Thus in the Italian penal code the differentiating 
 principle adopts, side by side, two systems, the one applied 
 by the law and the other applied by the judge. For those 
 offenses for which the punishment is unalterably fixed by 
 the law, the law retains the choice, and applies one or other 
 of the parallel punishments according to the character of 
 the offense. On the other hand, for those offenses for which 
 the choice between the two punishments is left to the judge, 
 it is the judge who applies one or the other, according to the 
 merit of the individual. The system is not fully developed; 
 and the same may be said of the parallel punishments of 
 the German penal code. According to Art. 20, in certain 
 cases, as prescribed by the law, the judge has at his disposal 
 two kinds of punishment by imprisonment. To justify the 
 application of the more severe, the details of the crime must 
 be peculiarly abhorrent. But in fact, since the law pre- 
 scribes and determines the applications of these parallel 
 punishments, it admits them only in cases not very different 
 from political crimes and in certain offenses of state officials. 1 
 
 As a result of the able report of M. Garden the question 
 1 See Olshausen, "Kommentar zum Strafgesetzbuch," I, p. 97.
 
 260 INDIVTOUALIZATION OF PUNISHMENT [84 
 
 has been taken up anew and thoroughly studied. It was 
 presented before the Societ6 generale des Prisons, and was 
 followed by a general discussion by several men of authority. 
 Expert opinion is thus available; 1 indeed this admirable and 
 profitable method of securing scientific information should 
 be more extensively adopted. . 
 
 84. Principles underlying Individualization ; Uniform 
 Punishments 
 
 The field for such discussions was prepared by the ideas 
 advanced at the Congress at Stockholm in behalf of a uni- 
 form type of punishment. This view has since then made 
 considerable progress. Recent drafts and codes tend in 
 this direction, and the French revision, in its approximate 
 adoption of the principle, presents one of its most successful 
 innovations. This improvement is due to M. Leveille. It 
 was recognized that the so-called differences of discipline 
 were little more than varieties of torture (using the word 
 hi no harsh sense) and were of little avail. It is a survival 
 (and in so far justifies the use of the word " torture ") of the 
 fertility of such devices in our ancient criminal practice. 
 To apportion the suffering to the evil done was the tradi- 
 tional form of the system of penalty; and in principle this 
 relation has persisted. Those who still hold to the concep- 
 tion of penalty have rejected the crude conception of injury 
 for injury, particularly as circumstances do not permit any 
 real equivalence and merely serve to bring about the striking 
 inequalities of punishment. Penalty implies responsibility 
 and the evidence of moral guilt; it implies as well the possi- 
 bility of a moral effect, a moral action of the punishment, 
 and this is confused with expiation; it effects a regeneration 
 through suffering. Unquestionably suffering is experienced, 
 
 1 See above, p. 254, note.
 
 84] JUDICIAL INDIVIDUALIZATION 261 
 
 but the hope may be expressed that for some, if not for all, 
 suffering will be resignedly accepted. Such is the implica- 
 tion of the word "pemdty," the end in view in expiation; 
 but the conception of a fictitious proportion between the 
 evil done and the moral injury realized is acceptable only 
 as a religious doctrine of retribution, according to which 
 the destiny of the human soul is regarded as predetermined, 
 and past sins must be wiped out. But when the future is 
 at stake, the past is negligible in comparison to the pro- 
 tection of a career and the reformation of a life. The notions 
 of penalty and expiation are of value only in stimulating 
 activity in the direction of moral reform. We are justified 
 in asking how, hi times of religious faith, these ideas of re- 
 tributive justice were reconciled with the Christian con- 
 ception, which is devoted to the saving of souls so long as 
 life lasts, and regards past sins and penances merely as suc- 
 cessive stations in the gradual ascent of the moral life. 
 Under our present views such conceptions must be looked 
 upon as survivals of the old conception of the law of re- 
 taliation an eye for an eye, a tooth for a tooth. Morally 
 this does not appeal to us, and practically it is becoming 
 less and less realizable. The difficulty appears in the dis- 
 tinction between reformatory imprisonment and hard labor, 
 which for the most part is vague and confused. Unques- 
 tionably a difference hi punishment should be retained 
 corresponding to the difference hi crime; but this should 
 be expressed in the term of sentence, and therein will the 
 principle of proportionality be maintained so long as we hold 
 to an objective scale of offenses. There will be no danger 
 of the prevalent differences of judgment of court and pris- 
 oner with reference to the severity of penal servitude. There 
 will be an approach towards a uniform type of punishment, 
 applicable to all criminals through a reformatory discipline
 
 262 INDIVIDUALIZATION OF PUNISHMENT [ 85 
 
 arranged in progressive stages. England has for some time af- 
 forded an example of such a system. The only distinction that 
 remains is that between punishments that may be adapted to 
 such a discipline and those that cannot; and this corresponds 
 to the distinction between long-term and short-term punish- 
 ments. These conclusions are now generally accepted. 
 
 If there is to be but a single type of punishment with an 
 invariable discipline, it becomes illogical to put all kinds 
 of offenders, as the expression goes, in the same boat. Such 
 lack of discrimination runs counter to current opinion, well 
 worthy of respect, which itself does not favor any extreme 
 variety of disciplines. If the punishment is not to vary 
 according to the external character of the crime, then pun- 
 ishment must be classified upon some other basis, which 
 must be the consideration of the individual, a subjective 
 classification of punishments replacing the prevailing ob- 
 jective classification. In this way the system of uniform 
 punishments leads insensibly to uniformity in each group 
 of individualized punishments. 
 
 These steps in the development should be carefully noted; 
 the system of parallel punishments forms one transition, 
 and that of individualized punishments another. As ap- 
 peared above, the difficult point in the combination of par- 
 allel punishments with the uniform type of punishment is to 
 determine the criterion of application of the different parallel 
 punishments; the punishment is uniform in terms of the objec- 
 tivity of the crime, but variable according to its subjectivity. 
 On what basis shall this distinction be established? 
 
 85. Legal Individnalization for Special Offenses or 
 Circumstances 
 
 There are but two systems possible, as was seen hi 
 the case of the Italian penal code, application by law or
 
 85] JUDICIAL INDIVIDUALIZATION 263 
 
 application by the judge. The former is proposed by the 
 more hesitant innovators. It consists merely in separating, 
 in the law, certain crimes or misdemeanors of a less in- 
 famous character, and applying to them the one of the 
 two types of punishment by imprisonment, which is not 
 considered infamous. Duelling is to be treated in this 
 way, and the same obviously applies to offenses of negli- 
 gence and infractions. There should likewise be placed 
 in this privileged group the several offenses of intermediate 
 status between deliberate offenses and those incurred through 
 negligence, in which the intention was not directed to the 
 result that ensued while however considering it as a possible 
 outcome. Such would be the case of the hunter who fires 
 while aware that there are passers-by within range. He 
 considered the possibility of an accident, but this was pres- 
 ent to his mind as a most unlikely chance. He fired and 
 an accident occurred. 1 This is more than an offense of bad 
 judgment. It is an offense of intent in the sense that the 
 intent in its possibilities was in the direction of a possible 
 murder. It is thus a contingent offense. It should be pun- 
 ished more severely than a simple offense of negligence but 
 differently from an ordinary intentional offense that implies 
 a true criminal intent. In this case a special punishment 
 and not the common-law punishment should apply. 2 
 
 In other words there will merely be extended to certain 
 
 1 There may be added the case of the station-master who gives the signal 
 for the departure of a train, although the track is not clear, and foresees 
 the possibility of an accident, although there is but one chance in ten in 
 favor of it. Having considered the contingency, it becomes a contingent 
 offense. There is also the case of the physician, who in his scientific enthusi- 
 asm in attempting a new treatment, inoculates a hospital patient with the 
 microbe of a disease that is nearly always fatal. He foresees very clearly 
 that the patient may die. This involves more than bad judgment; there is 
 an intent and a contingent crime. 
 
 1 On this theory of contingent liability see above, p. 221, note 1.
 
 264 INDIVIDUALIZATION OF PUNISHMENT [ 85 
 
 common-law offenses the provisions now obtaining for 
 political offenses. The law will thus regard certain common- 
 law offenses, that in themselves and objectively do not im- 
 ply a true subjective criminality, as similar in status, and 
 in the appropriate punishments to be assigned them, to 
 political offenses. 
 
 But such individualization by law is quite inadequate. 
 A further step must be taken by allowing the law to provide 
 a special punishment for the offenses just indicated; but in 
 addition a similar provision must be made for all other 
 offenses by affording the judge the choice between the two 
 punishments according to the moral nature of the offense. 
 This will be a system of judicial application, but it in turn 
 may be understood hi two ways, with or without legal pre- 
 scription. The law may leave entire freedom to the judge, 
 neither guiding nor prescribing his choice. The judge may 
 thus make his own criterion of application, and in this 
 case the criterion may be the consideration of the individual 
 in his entire personality, in place of the individual considered 
 solely in relation to the deed committed. But this excellent 
 plan is not what is generally proposed. It is the intention to 
 give the judge, whatever may be the crime or misdemeanor, 
 a choice between two parallel punishments; but the law 
 shall state the basis of choice to be employed. The law is 
 thus to determine the criterion which is to serve as the 
 indication to the judge to apply one or the other of two 
 punishments; and this criterion will be precisely that of 
 which we have spoken at some length, the motive. The 
 motive will be interpreted in the sense set forth in detail, 
 as the emotional or moral factor which has incited either 
 the end for which the crime was committed or the crime 
 itself as a means of attaining the end. The psychological 
 factor plays the determining part in the crime.
 
 85] JUDICIAL INDIVIDUALIZATION 265 
 
 This amounts to affirming that the nature and the dis- 
 cipline of the punishment should depend upon the motive, 
 that is, upon the moral attitude revealed by the crime, or, 
 rather, that which is revealed as the active force and in- 
 centive of the crime. There will be different punishments 
 for those whose crime has been incited by low and perverse 
 sentiments and for those whose crime was incited by senti- 
 ments that in themselves are not dishonorable. From this 
 starting point the advocates of parallel punishments propose 
 to classify punishments in two groups: the one correspond- 
 ing to infamous punishments, like hard labor in the Italian 
 penal code; and the other corresponding to punishments 
 that are not infamous, like detention as it is set forth in the 
 same code. That is the whole of the system. It is clearly 
 a step in advance. It evidences the growing movement 
 towards a subjective penal law, that is, towards a penal law 
 that is more humane and more considerate of the individ- 
 ual. The eyes of Justice have too long been bandaged and 
 prevented from seeing the position of her scales; and this 
 has given rise to many an injustice. The bandage must be 
 removed. Justice must be given sight and insight that shall 
 be adequate to probe the human conscience, not to find 
 the proof of freedom of action for this, Justice is not 
 equipped but to sound the moral depth of the offender, 
 a service to be readily and even scientifically performed. 
 The system of parallel punishments is a protest against 
 abstract impersonal justice, which was the ideal of a for- 
 mer generation, but which we reject because we know its 
 results: criminals by birth who scorn it, or chance offenders 
 whom it brands and ruins. The bandage on the eyes of 
 Justice protects the perverts and degrades the chance of- 
 fender. The former welcome and find support in it; the latter 
 find in it their despair. We demand a Justice that sees
 
 266 INDIVIDUALIZATION OF PUNISHMENT [86 
 
 clearly, that treats perverts as perverts, and the wayward 
 as wayward as redeemable members of society. 
 
 86. The System of Parallel Punishments; Punishment and 
 Social Dishonor 
 
 The system of parallel punishments is a first step in this 
 direction, but is, as yet, inadequate. From two points of 
 view it remains too superficial: as a system of punishments, 
 from the punitive point of view; and as a criterion of ap- 
 plication, from the psychological point of view. So far as 
 concerns the discipline but two things seem to have been 
 considered: to make punishment less infamous, and to make 
 it less severe and thereby less deterrent. The former is 
 valueless and the latter altogether inadequate. The ques- 
 tion of the infamous character of punishment should never 
 have been raised. The purpose of punishment is never to 
 destroy honor but to restore it. What constitutes infamy 
 is the corruption disclosed by the crime and which makes 
 the criminal an outcast. Condemnation disgraces him in 
 that it reveals officially and judicially his psychological 
 criminality, and in that it fixes his attitude and position 
 with reference to the social group. But the feeling of honor 
 is one of the impulses least amenable to reason because it 
 is of purely social origin. It belongs to the subconscious 
 relations of the individual with his social group. It is not 
 a feeling capable of conscious and reasoned analysis. It 
 is the sense of being a member of a group, an equal amongst 
 equals. This becomes the standard of social normality. 
 Crime throws a man out of relation and makes him abnor- 
 mal; he becomes an outcast and an alien. The sense of 
 dishonor presents an inner and an outer aspect, and it is 
 well to observe in opposition to the common opinion 
 that it begins from within, in a sense of abnormality and
 
 86] JUDICIAL INDIVIDUALIZATION 267 
 
 degradation which the crime has brought about. Is this 
 feeling shame or is it remorse? It cannot be remorse, for 
 this is an elevated moral conception, although it is often 
 misunderstood as though it were a sort of brooding upon 
 the past, while rightly it should be a source of energy for 
 future regeneration. It more nearly approaches shame, 
 although the strong consciousness of abnormality may 
 develop into the consciousness of a deeper personality, of 
 a more serious and stronger initiative. The transition from 
 one group to the other is accompanied by the self-bestowed 
 honors of war. Criminals have the courage of their crime. 1 
 Let us hold to this direct influence disclosed by a psy- 
 chological and social analysis, namely, the consciousness 
 of social loss of caste. Though strange, it is true that, as 
 outwardly reflected, such loss of honor is slow to appear. 
 The social estrangement of the criminal will not be seriously 
 reflected by the treatment of his associates if he himself 
 puts up a bold front and gives no suspicion of his inner dis- 
 grace. One knows him to be a dishonest man but continues 
 to pay him respect and consideration; he remains a part of 
 the social group; he is not ostracized nor excommunicated. 
 Infamy does not depend upon morality but upon social 
 equality. So long as the dishonest man holds his own and 
 remains within the group of his equals, one ignores what 
 he is. Social consciousness and social unity are so strongly 
 embedded in our nature, that no one individual takes it 
 upon himself to exercise the social authority and excom- 
 municate another. In order to render infamy effective the 
 social organism, here expressed in the judicial power, must 
 pronounce the loss of caste. Contrary to the familiar say- 
 ing, "It is the scaffold and not the crime that disgraces," 
 
 1 On this subject, and from an analogous point of view, see the recent 
 -volume of Sighele, "Litterature et criminality."
 
 268 INDIVIDUALIZATION OF PUNISHMENT [ 86 
 
 it is really society that disgraces. Honor and esteem should 
 not be confused. Esteem is conferred by one individual 
 upon another; honor is conferred by society alone. 
 
 Condemnation by means of a legal sentence becomes a 
 social excommunication, and as such it dishonors. But 
 wherein consists the infamy of the punishment that fol- 
 lows? The dishonor is already incurred, and honor is now 
 to be restored. Lost ground must be recovered and a new 
 opening found through which an entrance and adjustment 
 to a social status may be brought about. The social ban 
 must be lifted; the convict must make himself socially ac- 
 ceptable, and thereby regain his sense of honor. The pur- 
 pose of punishment is to facilitate such reinstatement and 
 to restore the sense of social equality. 
 
 Punishment should not be designed to intensify the dis- 
 honor inherent in condemnation: and that for two practical 
 reasons, first, because it would intensify the depravity 
 prevalent among criminals; and second, because it would 
 impede the social reinstatement. There are two sources 
 of corruption: the hardships of the environment, which 
 re-enforce evil impulses; and the loss of the sense of honor, 
 or rather of self-esteem. Of the two, the more serious is 
 certainly the second. The hardships of the environment 
 can never quite destroy the moral sense, never wholly destroy 
 regret for the past and hope for the future. The loss of 
 self-esteem is the definite abandonment of oneself and the 
 acceptance of one's downfall. The man who knows and 
 feels himself lost is, socially speaking, "done for." He is 
 beyond the pale, fallen to the level of those whom society 
 has dishonored and rejected. He is degraded in his own 
 eyes and in the eyes of others. Nothing more is to be ex- 
 pected of him; and thus the disgrace of punishment acts 
 as the most powerful means of corruption. The serious.
 
 86] JUDICIAL INDIVIDUALIZATION 269 
 
 obstacle to social reinstatement is obvious. How is society 
 to accept one whom it has already rejected? To him all 
 doors are closed, particularly the door of the workshop. 
 Refused by society, the only world that is open to him is 
 that underworld frequented by his prison chums. 
 
 Such is the effect of infamous punishments. Punishment, 
 to accomplish its end, must not involve the loss of honor. 
 It must aid in its restoration. Far from exerting its present 
 influence, punishment must be made to support self-esteem 
 by aiming to weaken the immoral impulses which have led 
 to its loss, and by replacing these with tendencies opposed 
 thereto. For this purpose the discipline must arouse in 
 those affected a clear appreciation of their possibilities, a 
 new conception of life, in which energy and personal initia- 
 tive, the habit of work and effort, should be dominant. The 
 effect of the discipline should be to make a man feel worthy 
 of the social life, and thus restore his sense of honor. For 
 the sense of honor, like that of dishonor, must be worked 
 upon subjectively; it must exist within the man before 
 others can be asked to recognize and sanction it. Punish- 
 ment must bring about a spiritual regeneration, and thus 
 make liberty the consecration of honor regained, the be- 
 ginning of social rehabilitation which the test of life con- 
 firms. To this end punishment should prepare and give 
 assurance of social reinstatement and never impose an in- 
 delible stigma. In this respect there is at present a fair 
 agreement. There is a growing sentiment in favor of 
 abolishing punishments that dishonor, 1 and of discarding 
 the distinction made between infamous and non-infamous 
 punishments. 
 
 1 It has been indicated above that this is not necessarily connected with 
 the removal of the disabilities accessory to punishment. See above, pp. 
 255-256.
 
 270 INDIVIDUALIZATION OF PUNISHMENT [ 87 
 
 87. The Factors entering into the Classification of 
 Criminals 
 
 The disposition of the severity of punishment is likewise 
 unsatisfactory. Obviously punishment should be severe; 
 otherwise it would not be a penalty, and would not stimulate 
 reflection nor regret. It must work upon the individual to 
 rebuild him spiritually. Again, if the prison discipline is 
 not severe it ceases to intimidate; it would become a form of 
 hospitality of which, apart from the moral effect, advantage 
 would be taken. We must avoid all false sentimentality; 
 punishment should be severe, if need be, very severe, and 
 perhaps it should be imposed according to the nature of 
 the criminal. Yet this is not enough. The relative severity 
 of discipline is inadequate to place the punishment in proper 
 relation to the corrective education and moral reform of 
 those condemned. It is the mode of organizing the dis- 
 cipline itself, independently of the question of severity, 
 that must characterize the punishment and constitute its- 
 true nature. 
 
 It has for some time been recognized that there should be 
 three chief groups of punishments: (1) punishments organ- 
 ized with reference to a prospect of a social reinstatement; 
 (2) punishments applicable to incorrigibles, where there is 
 no such prospect; (3) punishments for those morally certain 
 to make good. For the last, the question of morality does 
 not really arise; for such offenders remain honest and there 
 is no occasion to reform them morally or spiritually, or to 
 provide a new environment. For them punishment has 
 no moral or educational purpose but is simply a penalty of 
 a deterrent nature. Apart from these two latter classes, 
 there are punishments, reformatory punishments, applicable 
 to offenders who stand in need of and are susceptible
 
 87] JUDICIAL INDIVIDUALIZATION 271 
 
 of moral reform. Thus the three following classes: punish- 
 ments for intimidation, for reform, and for social protection. 
 
 How shall the parallelism of punishments based upon 
 the relative dishonor or severity of the punishment be as- 
 similated to this three-fold classification? The fundamental 
 basis of the classification should be the mode of organizing 
 the discipline, or, better, the intrinsic spirit of the punitive 
 treatment, and such classification should lead to a corre- 
 sponding classification of criminals. Psychologically the 
 question becomes the determination of a rational classi- 
 fication of criminals on the basis of parallel punishments. 
 
 In the theory of parallel punishments the classification 
 is made according to the motive. But it has been shown 
 that the motive is nothing else than the psychological factor 
 dominant in the crime. It is the decisive cause of the crime, 
 either in that it provided the object of which the crime was 
 the realization; or that it itself was the issue of the end to 
 be obtained and thus suggested the crime; or that it gave 
 rise to the moral energy needed to translate the thought 
 into deed. But the motive thus understood is but a pe- 
 culiar and specialized sentiment, though also a part of char- 
 acter and the index of a dominant trait. Nine times out 
 of ten it has a true symptomatic value, but not necessarily 
 so. Rascals may on occasion act on generous impulses and 
 commit crimes that are like the "crimes of respectable men," 
 of the existence of which juries seem to be convinced, and 
 which the Swiss draft does not hesitate to recognize legally. 
 On the other hand criminals by accident may have com- 
 mitted a crime under the impulse of base sentiments, which, 
 if alone regarded, would suggest a hardened and perverted 
 professional. When we consider the motive we begin to 
 obtain insight into the depths of human nature. But 
 our considerations are still superficial. It is still too
 
 272 ENDIVIDUALIZATION OF PUNISHMENT [87 
 
 much the crime and not enough the criminal that is 
 uppermost. 
 
 There are three stages in the psychological analysis of pun- 
 ishment, which the evolution of penal law discloses. At first 
 the material fact alone was considered; so long as the crime 
 was the same, the subjective criminality was deemed to be 
 the same. A deeper analysis brought forward the question 
 of responsibility. By using the criterion of accountability 
 and freedom, the attempt was made to measure and gauge 
 the moral status of the agent; but the act committed was 
 ever uppermost, and the decision turned upon the amount 
 of deliberate intent which the act disclosed, upon the re- 
 sponsibility attaching to the act itself. Whether this 
 responsibility was exercised by a debased criminal or by a 
 respectable man made no difference; indeed the punishment 
 imposed was heavy for the respectable man, and seemed 
 light to the hardened criminal. At length a further step 
 was taken. Instead of undertaking to measure or estimate 
 the degree of intent or freedom, which ever escape quan- 
 titative measurement, the quality of the will was looked 
 into. Instead of a quantitative, a qualitative valuation 
 was attempted, and the motive thus emerged, that is, 
 the relative depravity of the emotion that incited the re- 
 solve and gave it its character. 
 
 We thus reach not the degree of intent or freedom but 
 the degree of perversity expressed in the action. This may 
 be called the subjective criminality of the action and is to 
 be substituted for responsibility. It is a decided advance. 
 We are no longer exposed to confusions of terms such as 
 those involved in the theory of responsibility, the lesser 
 punishments being assigned to the worst offenders. The 
 criminality of the act remains in direct relation with the 
 perversity with which it was conceived and executed. Even
 
 87] JUDICIAL INDIVIDUALIZATION 273 
 
 if we consider only the criminality of the act itself, the 
 worst offenders have slight chance to escape the maximum 
 degree in the scale of subjective criminality. Moreover, 
 quite apart from the personality of the criminal, it is a large 
 step in advance to assign the maximum of penalty to the 
 maximum of perversity. The theory of responsibility might 
 lead to a quite opposite result. But it is altogether likely 
 that the perversity inherent in the act corresponds to the 
 natural perversity of the individual. If the case is one of 
 murder incited by pure cruelty there is considerable prob- 
 ability that the agent is by nature passionate and cruel. 
 
 However there are more or less exceptional cases in which 
 this is not true; and if the law, according to the theory of 
 parallel punishments, must necessarily make the particular 
 punishment assigned depend upon the particular motive 
 involved, the judge will have no choice and will be obliged 
 to apply the punishment attached by the law itself to a 
 crime committed under that particular motive. This is 
 unfortunate; even in such a case, the judge should not have 
 his hands tied. 
 
 We may accept the theory of parallel punishments but 
 on the condition that the criterion of the selection of pun- 
 ishment must not necessarily be the motive of the crime. 
 Without a further analysis the motive is nothing more than 
 a part of the circumstance and closely related to the act 
 committed. It affects the penalty, and the penalty is trans- 
 lated into the duration of the punishment. So far as the 
 permanent and fundamental character is concerned, the 
 motive expresses itself only indirectly and as a symptom. 
 The special and individual adjustment of the punishment 
 must be made according to the entire personality, not to 
 the fragment thereof revealed in the crime. Among such 
 motives a distinction should be made between a motive
 
 274 INDIVIDUALIZATION OF PUNISHMENT [88 
 
 directly aroused by the end to be obtained and an impulse 
 which has itself called forth this end. In the latter case 
 the motive is due to a moral attitude that is antecedent 
 not alone to the crime but to the details and circumstances 
 that explain the crime, or which came to exist under pres- 
 sure from without. With the motive as a criterion there 
 will always be this ambiguity; and the two conflicting points 
 of view will be liable to confusion. 
 
 Let us then still further extend the theory, and speak not 
 of parallel punishments to be applied according to the motive 
 of the crime, but of specialized punishments to be applied 
 according to the moral temperament of the criminal. 1 We 
 shall now see how such a system is to be constructed. 
 
 
 
 88. A Tentative System of Individnalization ; Static and 
 Dynamic Criminality 
 
 Having thus reached the heart of the question our further 
 task is to supply a definite constructive system. 2 An early 
 step in the direction of the newer view dates from the Con- 
 gress of Stockholm, 3 where the plea for the uniform type 
 of punishment was made. Opposed thereto was the cher- 
 ished notion of our traditional law, that punishments must 
 vary in discipline, and consequently in severity, according 
 to the nature of the crime. The more serious crimes de- 
 mand the more serious penalties, in length as well as in 
 discipline. Hence the large variety of criminal punishments 
 in which the penal code of 1810 abounds. It appears, how- 
 ever, that the opinion of criminals does not always agree 
 
 1 On these measures see the just comments of M. Alfred Gautier in his 
 comparative study of the revised French draft and the Swiss draft. A. 
 Gautier, "Deux projets," in the Revue penale suisse, 1894, pp. 105-107. 
 
 2 For what follows see L. Riviere, "De 1'individualisation des peines" in 
 the Revue penitentiaire, 1897, p. 1043, seq. 
 
 8 See the account of the International Prison Congress at Stockholm, 
 Vol. I, p. 189, seq.
 
 88] JUDICIAL INDIVIDUALIZATION 275 
 
 with that of the law and that frequently punishments in- 
 tended to be formidable and deterrent are in fact preferred. 
 The hardship of a punishment is determined less by the 
 severity of the discipline than by the previous sensibility 
 and education of the subject. It is thus quite useless to set 
 the punishment according to the crime. The duration of 
 the punishment must intimidate and stand as the penalty 
 of the crime, and since it is the nature of the criminal that 
 determines how the punishment is felt and regarded, and 
 since this also conditions the psychological effect, it is ac- 
 cording to the moral nature of the criminal that the nature 
 of the discipline and the reformatory status of the punish- 
 ment should be graded. 
 
 This then is our conclusion: the penalty aspect of pun- 
 ishment remains. Punishment remains a penalty because 
 the conception of responsibility persists and because satis- 
 faction is due to the sentiment of popular and social justice, 
 which insists that society shall pronounce upon and reprove 
 moral evil whenever it is injurious to the community. Pun- 
 ishment is an evidence of responsibility because responsi- 
 bility alone makes salvation possible. It is not sin that 
 degrades, because if it evidences the freedom of the sinner 
 in sinning, it likewise attests his freedom to restrain. In 
 any other theory the criminal becomes a lost being, an out- 
 cast and an alien, recalling the primitive savage described 
 by Lombroso. Yet though possibly more degraded, he 
 shares with all men the liability to sin; it is but a matter 
 of degree. As a free agent, responsible for his actions, he 
 may utilize this human privilege to effect his moral and 
 social reinstatement, as well as his ruin. Not all is lost, 
 and reform is ever possible. The conception of responsi- 
 bility should be incorporated with that of punishment; 
 without it the criminal is a creature despised, ostracized,
 
 276 INDIVTOUALIZATION OF PUNISHMENT [ 88 
 
 abnormal, and even monstrous; with it self-esteem remains, 
 or at least may be regained. The possible criminal, feeling 
 himself free in his actions, is conscious of his power to act 
 rightly as well as to act wrongly. He feels his community 
 with all sinners, for no one is without some measure of in- 
 nate depravity, and he feels particularly that he may again 
 become the equal of the regenerate. So valuable a moral 
 lever should not be interfered with. 
 
 But penalty, thus justified by responsibility, is not meas- 
 ured thereby. It must be apportioned to the subjective 
 criminality of the agent and made to reflect not a quantita- 
 tive but a qualitative factor of the will. This subjective 
 criminality of the agent presents two aspects. There is the 
 latent and passive criminality in the static condition, so to 
 speak, which is one with the essence of the character. It 
 expresses itself through this or that innate bent, or through 
 hereditary or acquired vice. It appears in every action 
 and every tendency of the individual, as well as in such actions 
 as are not in any sense criminal. It represents the vicious 
 aspect of the personality. The law does not punish this, 
 for if it punished persons by reason of their character, it 
 would be necessary to imprison them before they perpetrated 
 crimes. 
 
 There is a second aspect of criminality. Besides the 
 passive, there is the active dynamic criminality considered 
 as a psychic factor, which on occasion sets free an impulse, 
 which in turn breaks out into action. This active crim- 
 inality is often but the expression and operation of the 
 passive; the one reveals the other. Yet it is not always 
 necessarily so. Every personality has several phases; each 
 one of us harbors several conflicting personalities. St. Paul's 
 cry of despair is true of all. At any given moment one of 
 these several personalities becomes dominant, and through
 
 88] JUDICIAL INDIVIDUALIZATION 277 
 
 such dominance manifests the inherent morality or per- 
 versity of the individual or discloses his potential latent 
 criminality. But there are other occasional phases of our 
 personality which may come to the front; and there may 
 arise immoral criminal suggestions which are quite excep- 
 tional and accidental, unconnected with our past and with 
 little chance of a return in the future. Such active crimin- 
 ality does not necessarily represent the passive criminality of 
 our moral nature and should not be identified therewith. 
 
 But it is this criminality in its active effective state that 
 determines the act for which the law holds us accountable. 
 Socially it constitutes the moral danger of which we give 
 evidence, which the law recognizes, and for which it holds 
 us accountable. The responsibility that law and common 
 sense ascribes to us does not refer to the free will of the act 
 but only to the extent and intensity of the subjective crim- 
 inality. If the will, merging with the character, issues in a 
 criminal impulse, then for such issue we are held respon- 
 sible. For society, the criminality thus expressed and made 
 manifest constitutes the crime. It is the cause of the dis- 
 turbance and produces the injury for which we are held 
 accountable. 
 
 Such active criminality, representing the subjective crim- 
 inality of the crime, should determine the penalty. It is re- 
 vealed in the motive considered as the psychological factor 
 from which flows the direct impulse of the crime, and it is 
 by the motive that the term of punishment should be regu- 
 lated; for the term of sentence reflects the phase of the pen- 
 alty proportional thereto. 
 
 But when we come to determine the discipline of the 
 punishment, we need no longer consider the particular and 
 detailed variety of criminality inherent in the act. Char- 
 acter must determine the discipline. The nature of the
 
 278 INDIVIDUALIZATION OF PUNISHMENT [89 
 
 punishment should be determined by the passive criminality 
 in its latent and static condition. 
 
 The judge must thus apply two points of view and two 
 very different principles. He must determine the length 
 of the punishment according to the active criminality that 
 characterizes the crime, thus considering the principle of 
 penalty; and he must determine the nature of the punish- 
 ment according to the passive criminality of the agent, 
 according to his character, thus considering the principle 
 of the underlying purpose and of the individualization of 
 punishment. The degree of passive criminality may quite 
 often be determined through the motives and the subjective 
 criminality of the act, but this does not necessarily follow; 
 and here the judge must exercise large discretion. In some 
 cases the two forms of criminality are quite certain to be 
 contradictory, as in the case, for instance, of the recidivist 
 who may be guilty of many infractions and thus reveals 
 himself incorrigible and unimpressionable, yet whose latest 
 offense may imply but the minimum degree of criminality. 
 
 89. The Detailed Classification of Criminals 
 
 Such are the principles which should determine the ap- 
 plication of the scale of punishment. We must now attempt 
 a classification of criminals according to their psychological 
 nature, and, corresponding thereto, reach an adequate classi- 
 fication of punishments. 
 
 Leaving the consideration of the term of punishment, 
 which depends upon judiciary procedures not likely to differ 
 markedly from current practice, let us briefly survey the 
 nature of punishment and the resulting choice of the penal 
 discipline. 1 
 
 1 See Wahlberg, "Das Princip der Individualisirung," principally chapters 
 i and ii; and "Kleinere Schriften," passim, particularly I, p. 136, scq.; II,
 
 89] JUDICIAL INDIVIDUALIZATION 279 
 
 This choice should be made according to the nature of 
 the agent, or rather according to such criminal impulses 
 as he may exhibit, and according to the direction, variety, 
 and detailed nature of such criminal impulses. The object 
 is to establish classes of punishment corresponding to the 
 different classes of criminals. Here there is a serious pri- 
 mary difficulty to be avoided, namely, not to lose oneself 
 in minutiae of details and distinctions. There should be 
 no attempt to establish on a legal basis a complete classi- 
 fication of criminals with all their characteristic types and 
 varieties. This was the error of the anthropological school. 
 Thus Ferri, in his Criminal Sociology, has pushed the dis- 
 tinction of types too far; his position involves a mistake 
 and a faulty perspective, or rather, an error in the selection 
 of the point of view. It is easy to multiply varieties, and 
 indeed there will be a great many of them if one is bent upon 
 establishing psychologically detailed differences of individ- 
 ual temperaments, and if these in turn are to be classified 
 according to the causes influencing the origin of criminality, 
 such as heredity, environment, degeneracy, etc. The crim- 
 inal would thus be studied much as the botanist studies 
 plants, classifying and subclassifying them as soon as a new 
 variety is discovered; or as the zoologist follows a similar 
 plan in classifying animal species. It is such an anthropo- 
 logical point of view that the sociological school assumes 
 towards criminality. 
 
 p. 138, seq.; Ill, p. 18, seq. p. 55, aeq. Also his excellent essay "Das Mass 
 und der mittlere Mensch im Strafrecht" (in Griinhufs Zeitschrift fiir das 
 privat und qffenttiche Recht der Gegenwart, 1878, p. 465); Colajanni, "La 
 sociologia criminale," passim; Ferri, "Sociologie criminelle," p. 80, seq.\ 
 Garofalo, "Criminologie," passim; Tarde, "fitudes penales et sociales," 
 p. 115, seq., p. 117, seq., p. 273, seq.; "Philosophic penale," p. 215, seq. See 
 especially Liszt, "Die psychologischen Grundlagen der Kriininalpolitik " 
 (Z., 1896), p. 479, seq., p. 488, seq. Also U. Conti, " II delinquente nel dirittc- 
 criminale," in the Archivio giuridico, 1894, p. 266, seq.
 
 280 INDIVIDUALIZATION OF PUNISHMENT [ 89 
 
 But this is not and should not be the point of view of 
 the law. Its purpose is not merely the establishment of the 
 facts and conditions but the investigation of principles, the 
 testing of results, the conformity of the law to social stand- 
 ards. From this point of view a classification should be 
 adapted to the results which the law seeks to secure. Crim- 
 inals should be classified with reference to the provisions 
 at our command, and such provisions are of a quite limited 
 range, measures of repression together with suitable 
 varieties of discipline. 
 
 In this connection two observations may be urged: the 
 first that for various reasons, of which perhaps the most 
 obvious is the financial one, the variety of punitive treat- 
 ments cannot be multiplied indefinitely; and the second, 
 that even supposing we were in a position to establish 
 varieties of discipline corresponding to every new variety 
 of criminal, we altogether lack the scientific criterion to 
 determine for each of the offenders appearing before the 
 courts the exact class to which he belongs. Ideal classi- 
 fications may be worked out on paper. We do not com- 
 mand a method of moral diagnosis that definitely establishes 
 the type to which every individual properly belongs. Let 
 us not aspire to the impossible lest we descend to the ridic- 
 ulous. Most sociological classifications confuse two points 
 of view which should be kept distinct. The one is that of 
 the origin or source of the criminality such as atavism, 
 degeneracy, influence of the environment to which there 
 correspond criminals by birth or heredity, the degenerates, 
 and others. The second is that of the type of criminality; 
 such are the wanton, the crooks, the depraved, and many 
 others which Garofalo has well characterized. 1 Finally, 
 for each of the types, there are those amenable to reform 
 1 Garofalo, "La Criminologie" (Paris, F. Alcan).
 
 89] JUDICIAL INDIVIDUALIZATION 281 
 
 and the incorrigible. The former are such as have retained 
 the sense of morality or a surviving vestige thereof, and 
 thus are still capable of appreciating the immorality of their 
 actions; they lack an incentive to effort, and this may be 
 supplied. The latter are such as have lost all moral sense 
 and can be but slightly influenced; their habit is set and 
 their character is wholly depraved; their feelings have 
 ceased to accord with those of normal men. There thus 
 appear three aspects and classifications of crime, different 
 in kind and scope: the first, in terms of the origin, the sec- 
 ond, of the type, and the third, of the degree of criminality. 
 In its bearing upon the law the first has no decided import. 
 Whatever the origin of the criminal instinct, the kind of 
 criminality which it produces may be quite the same. 
 Whether the criminality be inherited or acquired, its psy- 
 chological type may be similar. The born murderer, sup- 
 posing there are such, and the murderer by acquired habit, 
 are alike murderers so far as the law is concerned. The 
 material distinction in such cases is the degree of cruelty, 
 violence, or brutality involved. Yet in this respect a differ- 
 entiation in terms of the origin of criminality may afford 
 some valuable suggestions. 1 Although it may have no 
 proper legal status, nevertheless it is indirectly useful. It 
 will be found that the criminal by birth, if such really exist 
 in Lombroso's sense of the word, will transgress differently 
 from the criminal whose depravity is acquired and not in- 
 nate. The impulses of the latter need only be redirected; 
 his original nature is sound and may be appealed to. But 
 it remains no less certain that there are three distinct as- 
 pects which should not be confused, and which the majority 
 of classifications have wrongly presented as parts of one 
 classification. 
 
 1 See above, p. 131.
 
 282 INDIVIDUALIZATION OF PUNISHMENT [90 
 
 From the legal side, in its bearing upon penal law, the 
 third aspect, that of the degree of criminality, is clearly of 
 greatest import, since all repressive measures are to be 
 directed towards its eradication. The two other classifi- 
 cations, the one in terms of the type of criminality and the 
 other in terms of its origin, have value only in so far as they 
 may furnish useful suggestions, either as to the degree of 
 criminality or as to the measures that may counteract it. 
 
 The three-fold classification is an ancient one, classic in 
 its traditions, even before it was officially applied; and it 
 has not as yet been replaced. It includes the group of of- 
 fenders without true criminality, offenders whose criminality 
 is but superficial, and offenders tainted with a fundamental, 
 and thus ineradicable criminality, the incorrigibles. This 
 is a fundamental division; to it should correspond the three 
 classes of punishment repeatedly cited in former discussions, 
 deterrent, corrective, and protective. 
 
 90. Concessions to other Principles 
 
 While contending that this classification should serve as 
 the basis and point of departure for future criminal law, it 
 must yet be conceded that for certain offenders some ac- 
 count should be taken of the type of criminality, or even at 
 times, of the origin of criminality. This applies to certain 
 varieties of criminality of definite nature and origin, which 
 experience has shown may be relieved and counteracted 
 by special measures. By way of illustration one may refer 
 to certain types of delinquency, for which special institutions 
 are now provided, wherein the discipline is directed towards 
 the counteraction of the specific tendencies which produce 
 this type of transgression. Such are asylums for drunkards 
 and inebriates, workhouses and institutions for vagrants. 
 These have been successfully established in other countries.
 
 90] JUDICIAL INDIVIDUALIZATION 283 
 
 Experience has shown that in such institutions it is not 
 sufficient to direct the discipline towards the formation of 
 habits to counteract tendencies exhibited in the one con- 
 stantly repeated transgression. The provisions should also 
 afford scope for the influence of good example and intimi- 
 dation. This method has been applied to vagrants who, 
 in Germany for example, are sent to special institutions 
 where they are trained to work and to regular habits. Yet 
 no very marked results have been obtained, because the 
 discipline is too lenient and the detention too short. One 
 cannot hope to rebuild habits without ample time. Nor 
 is there any need to avoid intimidation. In view of experi- 
 ence at home and abroad, it is now proposed in France to 
 place vagrants in solitary confinement. 1 These vagrants 
 are free-footed and irregular, devoted to the highway and 
 an open-air life, and they are far less afraid of fatigue and 
 hardship than of a steady and regular job. Advantage 
 must be taken of their weak point by imposing solitary 
 confinement; they must be subjected to what they most 
 dread. 2 This is well enough, provided that solitary con- 
 finement is not made the sole factor in the punishment; for 
 solitary confinement does not amount to a complete puni- 
 tive measure. It is more a protection than a punishment; 
 
 1 See the report of M . Crisenoy on the " Repression du vagabondage " pre- 
 sented at the meeting of December 15, 1897, of the Societe generale des 
 Prisons (Revue penitentiaire, 1898, p. 4, seq.); and the ensuing discussion at 
 the meeting in March, 1898. 
 
 2 See the article in the Temps (Thursday, January 20, 1898): "La Police 
 rurale et le vagabondage." The question of vagrancy has been made the 
 subject of many proposed laws since 1898. The latest is that of M. Etienne 
 Flandin, January 20, 1908, relative to the "Revision des lois penales concern- 
 ant le vagabondage et le mendicite." The text with a resume of the previ- 
 ous proposals and with references is to be found in the Revue penitentiaire, 
 February, 1908, p. 292. Likewise see the current discussion before the 
 Societe des Prisons on the "Reorganization de la police en province" (Revue 
 penitentiaire, 1908, Nos. 3 and 4).
 
 284 INDIVroUALIZATION OF PUNISHMENT [90 
 
 it puts an abrupt stop to an irregular existence, suspends 
 the social life, encourages reflection, and facilitates thoughts 
 of reform. As a means of terminating the old life it is effi- 
 cient, but the problem of preparing the way to the new 
 life remains. Solitary confinement is but the negative side 
 of penal reform. There will be no advance unless a positive 
 side is added. A reliance upon solitary confinement is a 
 policy similar to that applied to children with delicate 
 lungs whose anxious parents do not allow them to go out 
 of doors in winter; they may escape bronchitis but their 
 lungs will never be able to resist the cold air. But that is 
 the real object. Convicts must be given a character capable 
 of resisting contact with the open air of social life. The 
 discipline of long solitary confinement (as in Belgium) is 
 appropriate only if, as Lombroso maintains, the failure of 
 penitentiary reform and the hopelessness of the convict's 
 moral improvement are conceded. These views are not 
 shared by the supporters of penitentiary discipline who regard 
 solitary confinement as one of their most inviolable tenets. 
 In hopeless cases there is nothing left but to inspire fear; 
 and it may be granted that solitary confinement is the best 
 means of intimidation. But once condemned to such pun- 
 ishment let the detention be a long one; when once prisoners 
 have been cut off from life, there is nothing gained through 
 their return. They have no fitness for social life, and this 
 is as true of vagrants as of others. After trying out the 
 discipline of isolation the convict should be released from 
 his solitary confinement and resume social contact, but 
 resume it through a discipline of work, a policy applied 
 to vagrants sent to workhouses. 1 
 
 1 On these points, and on the operation of the new Belgium system, see 
 the interesting communication of M. Batardy at the meeting of March, 1898, 
 of the Societ6 generate des Prisons (Revue penitentiare, 1898).
 
 91] JUDICIAL INDIVIDUALIZATION 285 
 
 91. Special Types of Individualization 
 
 One cannot touch upon this problem of vagrancy, which 
 however belongs to the province of the police, without ob- 
 serving how decidedly it contradicts the principles derived 
 from the doctrine of "responsibility." If punishment is 
 to be inflicted only for the commission of crime, by what 
 right shall the vagrant be punished who is but employing 
 his freedom as he chooses? It is obvious that he is pun- 
 ished as a matter of prevention; and that is just. He is 
 really punished for offenses which he may commit and which 
 it is assumed definitely that he will commit, clearly a pre- 
 ventive punishment and nothing else. Indeed some crim- 
 inologists of the classic school urge that the vagrant's 
 punishment should be most severe, solitary confinement 
 under the most rigorous conditions which our penitentiaries 
 afford. In so holding they are right; but what becomes of 
 the principles of their school? Even the adherents of the 
 Italian school have not gone quite so far. The conclusion 
 that follows from this situation is that the classic tenet of 
 the distinction between prevention and repression has never 
 been more than an abstract formula without practical ap- 
 plication. Accordingly, when we urge that repressive pun- 
 ishment shall be made a preventive measure, we have in our 
 favor the facts and the laws and, despite their principles, 
 the support of the classic school itself. 
 
 Certain special disciplines have been cited, established 
 in view of special offenses; and these take account of the 
 varieties of criminality. In other directions the sources 
 of criminality must be considered; for example, the neurotic, 
 the degenerate, and such other classes as are affected with 
 partial responsibility. Their criminality has no special 
 type; they belong to any of the different varieties. They
 
 286 INDIVEDUALIZATION OF PUNISHMENT [ 91 
 
 may include murderers and thieves, and particularly crim- 
 inals of passion. Their common trait is that their criminal- 
 ity is bound up with their temperament. What they require 
 is medical care in special institutions which combine hospital 
 with prison treatment. There is a fair agreement as to 
 this need, which, in case of minors, is met by houses of cor- 
 rection and reform. 1 
 
 Apart from these exceptional classes we return to our 
 general three-fold classification together with the three 
 classes of punishments corresponding thereto. This classi- 
 fication has two advantages: it rests upon data that may 
 be relatively simply determined; and it involves an easily 
 provided type of discipline. 
 
 Its application is simple. Let us take the two extreme 
 classes, the incorrigibles and the offenders without natural 
 criminality. As affecting incorrigibles, we have an approxi- 
 mate provision in the law of 1885 on deportation, in so far 
 as this applies to the recidivist. This is not the provision of 
 the older penal code for a repeated offense; for that increased 
 the punishment because it considered that there is an added 
 culpability in again transgressing after a first condemnation. 
 Yet such a measure issues from the conception of respon- 
 sibility as the basis of punishment, which is not in question 
 here. It is proper that the responsibility involved hi a sec- 
 ond offense should influence the term of sentence. But 
 the law of 1885 makes a novel provision for habitual crime; 
 it views such repeated transgression as a basis of individ- 
 ualization, as a symptom of incorrigibility. It is this new 
 view of the habitual offender which is now in question, and 
 it is the only one that should influence the character of the 
 
 1 Upon an attempt in England to apply a special treatment for minors, the 
 "Borstal System," see the article, already cited, of Sir Alfred Wills, in the 
 Nineteenth Century, December, 1907, p. 881, seq.
 
 91] JUDICIAL INDIVIDUALIZATION 287 
 
 punishment. It is significant solely as a symptom. Yet 
 the provisions of the law of 1885 are worthy of support for 
 several reasons, particularly because this law does away 
 with the necessary enforcement of protective punishments 
 on a basis definitely set by the law. It is important to retain 
 a large discretion for the judge. There is no legal criterion 
 of incorrigibility. Doubtless there may be certain factors 
 designated by the law to guide the decision of the judge, 
 but the Swiss draft leaves the judge wholly free. At best 
 there should be but an initial limit set by the law, and on 
 no account an enforced application. The law is concerned 
 only with laying down principles and establishing the larger 
 outlines, but leaves the details to other authorities. 
 
 At the other extreme, that is, at the upper end of the 
 classification, are the offenders who stand in no need of 
 reform because they are not perverts and present no innate 
 criminality. Here also the bases of classification will be 
 relatively simple; they will be furnished, as above noted, 1 
 by the nature of the transgression, and again which is 
 the chief factor by the antecedents of the offender. In 
 principle, the first consideration will be the absence of a 
 previous sentence, or rather the absence of a previous offense. 
 The classic distinction between the recidivist and the sum 
 total of an individual's criminal record is significant only 
 if we regard the habitual offense in the traditional sense as 
 reflecting responsibility; it has no pertinence in regard to 
 individualization. 2 There should be no misunderstanding 
 hi regard to the two different attitudes just noted, the one 
 wholly objective, viewing the nature of the infraction, and 
 
 1 See above, pp. 261-262. 
 
 1 See the draft of the Norwegian penal code and the article which M . 
 Andreas Urbye has devoted to it: "Les Sentences indeterminees dans le 
 nouveau projet de Code penal norvegien," in the Revue ptnale suisse, 1898, 
 p. 76.
 
 288 INDIVIDUALIZATION OF PUNISHMENT [92 
 
 the other purely subjective, although in principle depending 
 upon the condition that the crime is a first offense. There 
 is no question of the possibility of a cumulative charge in 
 the sense that if the charge be an offense not indicative of 
 subjective criminality, the defendant may be examined in 
 regard to his character, and may be liable to a punishment 
 of different nature from that prescribed by the law. It 
 would hardly be fair, when the defendant is sentenced in 
 court to a reformatory punishment, to plead that the sen- 
 tence be altered on the ground that the case concerns a 
 criminal by birth. That would be a purely preventive 
 measure after the manner of those supported by the argu- 
 ments of the Italian school. Such extreme conclusions we 
 have declined to accept. 1 Common-law punishments should 
 be applied to those convicted of common-law offenses, yet 
 even in such cases one should be able to impose a mere re- 
 formatory punishment. But the converse would not apply. 
 Unless we resort to the extreme conclusions of the Italian 
 school, we should not consent to have a political offender 
 subjected to the discipline of an ordinary criminal on the 
 ground that he happens not to be a worthy man. Such a 
 paradox should certainly not be countenanced. 
 
 92. Possible Extensions of Individualization ; Relation to 
 Preventive Measures 
 
 As just noted these principles are thus applied to all first 
 offenders, yet here likewise distinctions must be made be- 
 tween individuals, at all events in cases of common-law 
 offense. But these distinctions are now well drawn by the 
 courts under the application of the Berenger law, though 
 under conditions presenting difficulties in other respects. 
 Why should not the same be done in cases of a choice be- 
 1 See above, pp. 122-124, p. 137.
 
 92] JUDICIAL INDIVTOUALIZATION 289 
 
 tween a reformatory and a deterrent punishment? This 
 would be but a compromise with the existing situation. As 
 things are at present, it is all or none, either imprison- 
 ment in its ordinary form or the entire omission of punish- 
 ment. We urge an additional option between the two, that, 
 before reaching the remission of punishment, there be in- 
 stituted an intermediate stage a substitution of punish- 
 ment. It is true that abuses of parole are readily cited, but 
 these are no more pertinently cited with reference to parole 
 than to acquittals by juries in cases of crimes which the 
 law punishes too severely. Impunity is preferred to a pun- 
 ishment that runs counter to public conscience. It would 
 appear that only the lay judges, as they are called, are open 
 to guidance by humane considerations or common-sense 
 justice. But in so far as professional judges follow the pre- 
 cedent, is it not to their credit? What influences the verdict 
 in such cases is not the injustice of the minimum limit of 
 the punishment (since this no longer applies to "mitigated" 
 sentences to reformatories) ; the jury take umbrage at the 
 discrepancy between the punishment and the individual. 
 To express their indignation at the crime they pronounce 
 a severe sentence, but in sympathy for the individual they 
 grant parole. This recalls the nominal punishments of the 
 ecclesiastical law. There are cases, however, in which the 
 punishment seems excessive even to the judges; they ask that 
 a new statute give them an additional alternative. This new 
 statute will not curtail the field of application of parole; that 
 would be regrettable. It will provide an exceptional punish- 
 ment having none of the disadvantages of ordinary imprison- 
 ment, which they may impose at their discretion. 
 
 There remains the intermediate class of true criminals, 
 who are however amenable to reform; they result from the 
 elimination of the two other classes, a point that needs
 
 290 INDIVTOUALIZATION OF PUNISHMENT [92 
 
 no further explanation. All this may be practically, simply, 
 and readily introduced, without violence to the general 
 policy of our laws and our penal organization. It requires 
 no radical innovation, and still less a complete reversal of 
 policy; it requires the special direction of existing provi- 
 sions. We already have the three-fold classification; l we 
 plead for its more rational application; and the same 
 applies to the regulation of the punitive discipline. 
 
 Deterrent punishments are not directed to the reform 
 or re-education of the vicious. Their purpose is to set an 
 example that shall at once intimidate those upon whom 
 sentence is pronounced (which the Germans call an individ- 
 ual prevention), and intimidate others as well by way of 
 general prevention. This is the purpose of awards of com- 
 pensation and fines and their development as advocated 
 by Garofalo, which are commendable provisions worthy 
 of favorable application. Such is likewise the function of 
 solitary confinement. This is decidedly deterrent, but yet 
 a punishment subject to a special discipline somewhat an- 
 alogous to that which detention provides for political crim- 
 inals. Without entering into details, it is sufficient to recall 
 the question actively discussed at the Paris Congress of 
 1895 on the extension of "enforced" labor even to political 
 punishments, a question that here comes up anew. W T ill 
 not the best solution consist hi a combination of the two, 
 an enforced labor but a free choice of the kind of labor? In 
 this way manual labor will not necessarily be imposed if 
 the prisoner can show himself fit for other occupation; yet 
 this must not be a parody of real work. Such measures are 
 peculiarly appropriate to the class now under consideration, 
 persons who at all costs must be saved from contact with 
 others, from the common work-room, from all that degrades 
 1 See above, p. 209.
 
 92] JUDICIAL INDWIDUALIZATION 291 
 
 and contaminates. As to fines, if they are proportioned 
 to the resources of the defendant, they present the advan- 
 tages set forth by Garofalo. They are the least dishonoring, 
 and present the great advantage that they do not interrupt 
 a man's business or injure him professionally. 
 
 Punishments in behalf of public security are directed to 
 elimination, with no great expectations of influencing those 
 affected. They should consist in a discipline similar to that 
 enforced in jails, while reserving deportation to the colonies 
 for the more worthy and as a reward of good conduct. Even 
 incorrigibles need not be despaired of. Such "colonial" 
 punishments must be accepted in the light in which they 
 are considered by those who undergo them; if considered 
 as a lenient punishment, it should be the privilege of those 
 partly released. Colonization should be reserved for the 
 better class and not for the worst. The convict must enter- 
 tain the hope of freedom by absorbing a different view of 
 life. Saved from the promiscuous association of the prison 
 he may be regenerated; he may come to believe that on the 
 frontiers of civilization he may still serve society, no longer 
 his enemy but his benefactor, to whom he repays his debt 
 of obligation. 
 
 Corrective punishments are unquestionably the most dif- 
 ficult of all to organize. Very promising of worthy results 
 is the progressive Irish system, or some proper adapta- 
 tion thereof, with its variety of progressive disciplines 
 carried out, if need be, in different institutions; thus solitary 
 confinement at the outset, next occupation in the work- 
 shop, then transfer to an agricultural colony, and lastly 
 conditional freedom with considerable discretion of the ad- 
 ministration as to conditions. This plan seems to exclude 
 deportation, but not altogether. There should be reserved 
 for the worst crimes, those that carry a long-term sentence,
 
 292 INDIVTOUALIZATION OF PUNISHMENT [92 
 
 after the period of solitary confinement and a certain 
 period of probation, the possibility of the conversion 
 of the punishment. This likewise should be offered as 
 an encouragement for good conduct, affording a transfer 
 to the colonies under discipline of varied privileges, which 
 means colonization for the more worthy, though a long- 
 term if not permanent colonization. A similar alternative 
 was attempted in 1852, before the law of 1854. Possibly 
 deportation may thus be made to afford all the advantages 
 which were, and still are, expected of it, without the dis- 
 advantages that have brought it into disfavor. It is in this 
 direction that the commission for the revision of the penal 
 code should proceed. The draft favors the uniform type of 
 punishment with successive stages; unfortunately, it re- 
 stricts far too much the period of conditional liberation. 1 It 
 limits transfer to the colonies to the incorrigible under the 
 form of deportation. We should have more confidence in 
 the success of penal colonies if they were composed of first 
 offenders, even though these had committed serious crimes, 
 to whom the life in the colonies is offered as a means of re- 
 instatement, but with definitive expatriation. It is probable 
 that those who will thus choose expatriation will be the ener- 
 getic individuals, who feel the burden of their transgressions 
 and are anxious to take up a new career. All these, however, 
 are details in regard to which an agreement can readily be 
 reached. 
 
 Such are the general outlines of the system. As affecting 
 those amenable to reform by suitable punishments, there 
 still remains the difficulty resulting from the provision of 
 the fixed term, the difficulty of reconciling a moral re- 
 generation with the certainty of liberation at a definite date. 
 Thus we reach the last part of this series of considerations, 
 
 1 See Le Poittevin, cited above (Revue penitentiaire, 1893, pp. 160-161).
 
 92] JUDICIAL INDIVIDUALIZATION 293 
 
 relating to the administrative individualization under the 
 form of the indeterminate sentence. 1 
 
 1 As to the procedure considered above on page 283, it may be noted that 
 if this combination appears a little complicated one may, as an intermediate 
 stage, associate the jury in the determination of the sentence, as is de- 
 manded in the recent draft of the Garde des sceaux (Keeper of Seals). This 
 reform seems to be gaining favor. The distinction in itself logical, and thor- 
 oughly legal as an abstract formula between the function of the Jury and 
 that of the Court has been tested, weighed and found wanting. It does not 
 adjust itself to practice and conditions. In France present experience condemns 
 it. (See the draft of the law having for its object the conferring upon the crimi- 
 nal jury of the power to participate in the application of the punishment: Offi- 
 ciel 1908, Documents parlementaires, Chambre des deputes, No. 1605.) 
 
 To return to the question which constituted the principal theme of this 
 chapter, we may record that since 1898 the advance of opinion has been 
 tending in favor of the influences attaching to the recognition of the motive, 
 not alone upon the duration of punishment, its mitigation or aggravation 
 as in the Swiss draft but also upon its nature, as in the Italian penal 
 code of 1889. See AndrSades, "Les peines alternatives ou paralleles" (Thesis, 
 Paris, 1899). 
 
 Pertinent to the legislative point of view is article 24, Norwegian penal 
 code, which reads: "When hard labor is the only punishment depriving one 
 of liberty prescribed by the law, it may be replaced by a punishment of im- 
 prisonment of equal duration, if the circumstances permit of the supposition 
 that the act was not the result of an evil intent." 
 
 On the nature of the regulation of hard labor and imprisonment respec- 
 tively, according to the Norwegian penal code, see, in the translation of this 
 code, the note under article 24; and for a critical estimate of the interpreta- 
 tion of the text, see the preface of M. Garqon, p. xiii, seq. 
 
 Even in the domain of French jurisprudence one can observe a tendency 
 to take the motive into consideration. See Vidal, " Cours de droit criminel et 
 de science pnitentiaire" (edition of 1906), p. 183, note 1. On the influence 
 of the motive, see the Bulletin de I'Union intern, du droit pnal, 1908, p. 287. 
 
 Perhaps after due deliberation it may seem that the detailed system pre- 
 sented in the above chapter would prove most difficult of application, espe- 
 cially on the part of the judges; and that frequent and serious errors would 
 occur. The system is based upon the view that the judge can always deter- 
 mine the true character of the delinquent from the antecedents and factors 
 of the case, and will have available sufficient data to classify him in one 
 or another group, and to apply to him one or another kind of punishment. 
 But it is evident that often such a decision will be impossible to the judge, 
 who can then hardly escape the risk of making sad mistakes. How will he, 
 relying solely upon the briefs and the impressions in court, come into pos- 
 session of sufficient evidence to determine positively the moral and psycho- 
 logical nature of the agent; and particularly how shall he know in advance
 
 294 INDIVIDUALIZATION OF PUNISHMENT [ 92 
 
 the effect of such and such a punishment of such or other character? This 
 can only be determined by experience. Will it not necessarily result, so far 
 as concerns the duration of punishment, in leaving it to the choice of the 
 administration, under the form of an indeterminate sentence; so that in 
 course of punishment one may pass from one punishment to another, if the 
 first seems to be working contrarily to what was anticipated? But even in 
 this event we are in the presence of a decision less vague and less arbitrary 
 than when the issue was that of leaving to the administration the fixation 
 of the term. The many objections made to the latter system will now be 
 found to disappear, especially under the system of alternative sentences 
 introduced in England, and now proposed for minors. It is considered in 
 the draft now under discussion in Parliament, "The Prevention of Crime 
 Bill" (see the Times, June 13, 1908, p. 15, and the Daily Express, June 18, 
 1908). Thus for minors, to whom a lenient discipline is to be applied, the 
 Borstal system permits the administration, if it considers by its experience 
 that this discipline is not adapted to the individual in question, to apply 
 to the judge who issued the original sentence, to substitute a common-law 
 imprisonment for the rest of the term. It thus results for minors so far 
 as concerns the nature of the punishment and not the duration that 
 every sentence which prescribes a special discipline becomes only a pro- 
 visional sentence liable to be replaced in course of punishment by a different 
 sentence. The judge has at his disposal the one or the other, but the second 
 is not to be substituted for the first except upon actual experience, and not 
 at the time of commitment, as is proposed in our parallel punishments. 
 Hence the name of alternative sentences. It is evident that such a system 
 may likewise be applied to adults in a system of punishments that adopts 
 several parallel types of punishments even for adults. 
 
 Finally to complete the evolution, we must indicate the several laws and 
 drafts relative to children and minors in general. In regard to them every 
 one is agreed, even the most conservative classicists, that it is the principle 
 of individual iz.it ion that alone should be taken into consideration. Under 
 the technical expression of "discretion," understood formerly solely in 
 terms of responsibility, it is now the entire personality that is regarded. 
 One may also speak in this connection of the Juvenile Courts as they have 
 been organized in the United States, and of the valuable and successful 
 movement undertaken by M. Ed. Julhiet with the purpose of establishing 
 the same improvements in France. Some account of the views expressed in 
 various quarters on the subject of reform schools and in favor of the applica- 
 tion of indeterminate sentences in the cases of minors should also be given. 
 For an account of the important movement relative to measures affecting 
 minors, it is sufficient to refer to the Congres national de droit p6nal de 
 Toulouse, 1907, of which a report will be found in the Bulletin de I' Union 
 Internationale de droit penal, 1908, p. 3, seq. (See also in the same bulletin 
 in the same number in the Appendix, the draft of the Austrian law on the 
 penal treatment of minor criminals and on the protection of minors, 1907.)
 
 CHAPTER X 
 
 ADMINISTRATIVE INDIVIDUALIZATION 
 
 93. The Administrative Treatment. 
 
 94. The Principle of Indeterminate Sentences: the Elmira System. 
 
 95. Modified Indeterminate Sentences adapted to European Conditions. 
 
 96. Difficulties in the Extension of the System. 
 
 97. The Personal and Religious Factors in Reform. 
 
 93. The Administrative Treatment 
 
 IN matters of law, even more than in other fields, logic 
 asserts its demands. As soon as one enters on a plan of 
 individualization of punishment it appears that judicially 
 individualization must ever be approximate, and thus in- 
 adequate, both as affects the term of punishment (which 
 alone is ordinarily considered) and the nature of the dis- 
 cipline in which the movement had its origin. 
 
 The classification of offenders and appropriate punish- 
 ments must be general, for it is impossible to consider an 
 indefinite variety of punishments for the purpose of ad- 
 justing them in every group to the precise moral tempera- 
 ment of each individual. Judiciary individualization is but 
 a form of diagnosis. It is an individual classification based 
 upon an actual situation, that is, an actual subject 
 instead of upon an abstract personality, as is the case in in- 
 dividualization by law. But in practical morals, as in medi- 
 cal therapeutics, mere diagnosis is not sufficient; a remedy 
 must be applied, and that varies in each case. Now in mat- 
 ters of criminology the application belongs not to the official 
 pronouncing the sentence but to the one administering it, 
 
 295
 
 296 INDIVIDUALIZATION OF PUNISHMENT [93 
 
 the penitentiary administration. The law must grant to the 
 administration sufficient initiative and flexibility in the ad- 
 justment of the discipline, so that it may, in turn, adjust 
 the application of the punishment to the educational and 
 moral requirements; and that is what is meant by admin- 
 istrative individualization. 
 
 As concerns the term of sentence, administrative individ- 
 ualization raises two questions: that of the discipline, and 
 that of the term. Practically the two are one. It is clear 
 that moral regeneration cannot be compatible with the cer- 
 tainty of a release at a fixed date. If punishment is to be 
 primarily a reformative measure, a moral treatment, its 
 length cannot be determined in advance. One cannot an- 
 ticipate the time needed for a re-education; and it is quite 
 as absurd to limit the period to so many months or years, as 
 it would be for the physician, when summoned to a serious 
 case of illness, to predict a cure at a fixed date. Moreover 
 the case is not one of a true disease, for a disease presents 
 an acute crisis which has its set period. The penal treat- 
 ment is applied to a condition which is nearly always chronic, 
 a condition which is part of the moral nature; so that, in 
 fact, it is not a question of curing a disease, but of rebuilding 
 a temperament. The physician may anticipate the period 
 of an acute crisis, but can he judge how long will be re- 
 quired to alter the temperament of a neurotic, or to overcome 
 the taint of congenital phthisis? The case of a criminal 
 under a reformatory punishment is no different. From his 
 knowledge of the case the judge can determine the most 
 appropriate punishment. Possibly he can tell whether the 
 defendant is a true or a false criminal, and whether he is 
 susceptible to reform or incorrigible, and accordingly select 
 the discipline and apply the appropriate punishment. But 
 how can he at the same time set its term, and foresee how
 
 93] ADMINISTRATIVE INDIVEDUALIZATION 297 
 
 long will be required to convert the criminal into an honest 
 man? It is as though the alienist who signs a commitment 
 to an asylum, or the ordinary physician when he places a 
 patient in the hospital, were to indicate at that time what 
 is to be the date of discharge. The patient's discharge must 
 depend upon his cure, that is, upon his restoration to phys- 
 ical health. The same should apply to the criminal. He 
 should not be restored to liberty and the lif e of society until 
 he has ceased to be a menace to society and has recovered 
 his moral health. 
 
 But it is not the province of the judge to decide this. The 
 decision can be reached only in the course of the adminis- 
 tration of punishment through the judgment of those who 
 closely follow the progress of the convict, observe him at 
 work, and witness the regeneration that is taking place. It 
 is not the judge who can determine the time of a discharge 
 from the penitentiary, but the penitentiary administration 
 itself. The judge signs the warrant and makes the choice 
 of punishment; he determines the institution to which the 
 individual is to be sent; but he does not endorse the dis- 
 charge. This is a matter for the administration to which the 
 convict has been assigned. Accordingly the judge has to 
 determine not the length but only the nature and choice of 
 the punishment. It has been noted in behalf of judiciary 
 individualization that the judge should fix the length of the 
 punishment according to the subjective criminality of the 
 crime, and fix the nature thereof according to the general 
 criminality of the agent. Henceforth the first of these two 
 formulae may be omitted. The judge has but to set the 
 nature of the punishment, and thus need consider only the 
 general criminality of the agent. The criminality of the act 
 is a matter of indifference. However this fixation of the 
 term of punishment according to the criminality of the act
 
 298 INDIVIDUALIZATION OF PUNISHMENT [94 
 
 remains as the necessary consequence of the conception of 
 penalty, which under all circumstances is bound to persist. 
 Must there then remain an irreconcilable antagonism be- 
 tween the conception of penalty and of individualization? 
 As yet we have found no objection, in principle, in ranging 
 them side by side, the one serving as the justification and 
 the validation of the other. Will it follow, if we carry out 
 the plan to its logical conclusion, that the reconciliation will 
 become impossible, and that the policy cannot be consist- 
 ently carried through? 
 
 94. The Principle of Indeterminate Sentences : the 
 Elmira System 
 
 If then we reject the determination by the judge of the 
 length of punishment, the last trace of the conception of 
 penalty and responsibility will disappear and the notion of 
 justice will have no place. It becomes a matter of a moral 
 cure and hospital treatment. In this system the sentence 
 will carry no date of expiration of the punishment; that is, 
 the judge will not determine in advance in the sentence the 
 fixed term of the punishment. This is called the system of 
 the indeterminate sentence. By this provision there is a 
 double individualization, assigned to two authorities: one 
 part falls to the judge, who retains the choice of the punish- 
 ment, judiciary individualization; and the other falls to 
 the administration, administrative individualization; the 
 latter alone determining the length of the punishment and 
 terminating it when it is no longer considered necessary. 
 
 It thus becomes clear that the two points of view converge, 
 for there can be no indeterminateness as to duration unless 
 there is also an appropriate and individualized adjustment 
 as to discipline. We cannot presume to detain inmates in 
 prison or in analogous institutions for an indeterminate
 
 94] ADMINISTRATIVE INDIVTOUALIZATION 299 
 
 period unless we subject them to a discipline to effect such 
 moral reform as their character permits. The system is in 
 practical operation, and in practice the two phases are merged 
 and the two principles applied conjointly. 
 
 It must not be supposed that this is but a dream, or an 
 invention of closet philosophers. The dream has been 
 realized and the credit does not belong to the philosophers. 
 Indeterminate sentences are not an invention of doctrinaires 
 and idealists; they are an accomplished fact. They orig- 
 inated in the mind, or rather in the heart, of an apostle; 
 but this apostle was American, and Americans are not in the 
 habit of keeping their ideas in the abstract: they transform 
 them into deeds. 1 
 
 About 1876 the director of a reformatory institution in 
 New York State, Mr. Brockway, discouraged by the un- 
 satisfactory results obtained under the traditional method, 
 conceived the plan to make moral reform, which was gen- 
 erally agreed to be the function of punishment, the sole and 
 constant purpose not alone of the administration but of the 
 prisoners themselves. The preaching of good conduct to 
 prisoners is carried on unceasingly, but what does it amount 
 to? They know that at a set time they will be released and 
 that, whether the punishment has been effective or not, 
 their liberation is assured. What needs to be guaranteed is 
 not the release but the moral improvement. Such improve- 
 ment is made the very condition of release, and thereby 
 gives a definite interest to the endeavors and efforts of 
 moral reform which the prisoner himself exercises. 
 
 The great difficulty in such a system is to devise a reliable 
 test. It would be easy for a prisoner to pretend a conversion. 
 This seems peculiarly true in America, in an environment 
 
 1 fridiric LSvy, "Lea Sentences indetermineea " (Paris, 1896); the bibli- 
 ography of the subject will also be found there.
 
 300 INDIVIDUALIZATION OF PUNISHMENT [94 
 
 strongly imbued with the religious spirit. If any such dem- 
 onstrations of attained salvation were to be readily accepted, 
 would not the system place a premium on hypocrisy? 1 
 
 Mr. Brockway is too well acquainted with the inmates of 
 American prisons not to have foreseen this danger; he has 
 organized the discipline so that it itself shall serve as a test 
 and evidence of the moral progress of those subjected there- 
 to. There must be certain definite indications to mark these 
 stages of progress. The system of indeterminate sentences 
 is not compatible with the discipline of State penitentiaries. 
 It is practicable only under a specially devised system, one 
 that departs as little as possible from the life of a free society 
 with the initiative that it involves and the efforts which it 
 enforces. Thus alone may the attitude of the prisoner 
 towards a regular life be stimulated, may he serve an ap- 
 prenticeship to a regular life, and be readapted to the life 
 of society. This double advantage Mr. Brockway based 
 on the data and experience of a penal community at Elmira 
 in the State of New York. 
 
 This place was not a penitentiary properly so called, but 
 a house of correction, a reformatory, a private institution. 
 But Mr. Brockway secured from the State of New York the 
 concession that the courts should be authorized to commit 
 to his charge certain offenders, in general, first offend- 
 ers and young men who seemed particularly promising. To 
 this the State and courts agreed; and under this arrangement 
 the judge could avail himself of two kinds of punishment, 
 either the ordinary punishment in the penitentiary with a 
 fixed term, or a special punishment at Elmira under an in- 
 determinate sentence. Thus private initiative and public 
 authority combined for the most effective organization of 
 
 1 See what Mr. Montgomery has said in regard to English conditions in 
 the article cited above (Nineteenth Century, January, 1908, pp. 82-83).
 
 95] ADMINISTRATIVE INDIVIDUALIZATION 301 
 
 punishment. To us, who are committed to the policy of 
 State prerogative, this seems rather upsetting. We hold 
 that punishment belongs exclusively to the State and to 
 public authority. This axiom, like many another, if made 
 an invariable rule may prove to be a mistake. The province 
 of the State is to pronounce sentence, but the execution of 
 the punishment belongs to those to whom the State is will- 
 ing to entrust it; and these may well be private institutions 
 due to individual initiative. The plan has the distinct ad- 
 vantage of making private individuals patrons of those who 
 stand in need of social reinstatement and of released prisoners. 
 Respectable persons are apt to assume an attitude of dis- 
 trust or aversion towards those who have served time; the 
 prejudice against those who have been inmates of prisons 
 is familiar. But if these same respectable persons under- 
 take to interest themselves in the public penal problems, as 
 Mr. Brockway has done, they will come in contact with 
 prisoners and constitute themselves their moral sponsors. 
 When this occurs, as in America (for example in Massachu- 
 setts), these quasi-guardians, instead of impeding the social 
 reinstatement of released prisoners, facilitate it in every 
 way; and prejudices are removed. 
 
 95. Modified Indeterminate Sentences adapted to European 
 
 Conditions 
 
 It is upon such facts and conceptions that the institution 
 at Elmira is based. Its success is practically established. 
 M. Levy's thesis gives the statistics and details of the sys- 
 tem. It is sufficient here to indicate the combination of the 
 two points of view in regard to administrative individual- 
 ization which it embodies, the elasticity and flexibility of 
 the treatments fitting in well with the indeterminateness of 
 the sentence. It is indispensable, if the treatment is to have
 
 302 INDIVIDUALIZATION OF PUNISHMENT [ 95 
 
 a fair test and if the evidence of its success is to be furnished 
 by the authorities of the reformatory, that the director 
 thereof retain large discretion in adapting occupation to 
 ability, and the nature of the work to the severity of the 
 discipline. Accordingly, the individualization is made in 
 the course of punishment, not by larger or smaller groups 
 and classes, as would be done by the Court, but for each in- 
 dividual in particular, according to the personal experience 
 resulting from the first application of the punishment. 
 
 Judiciary individualization, which deals with large num- 
 bers, is supplemented by administrative individualization, 
 which deals concretely with individuals. The first deter- 
 mines only the manner of punishment; the second, for the 
 same class of punishments, determines the discipline, an 
 ideal combination. 
 
 Somewhat anticipating the system of indeterminate sen- 
 tences, it was urged so long ago as at the Congress of Stock- 
 holm, that the punishment should be set only in its general 
 outlines, not in detail; and that the administration should 
 have large freedom and initiative in determining the in- 
 dividual adjustment. It was the most comprehensive plea 
 advanced in behalf of administrative individualization. 1 
 The indeterminateness of the sentence was but a further 
 license following upon the discretionary right, as we may 
 say; for it was discretion in the sense used in ancient law, 
 assigned to the penitentiary administration. 
 
 The reformatory at Elmira has in some respects realized 
 what was advocated at the Congress of Stockholm. The 
 system has attracted general attention and stimulated re- 
 flection. It has called forth strong opposition, but it like- 
 
 i 
 
 1 See the account given of the meetings of the Congres penitentiaire in- 
 ternational de Stockholm, Vol. I, p. 110, aeq.; for the proposed solutions see 
 pp. 137-138.
 
 95] ADMINISTRATIVE INDIVIDUALIZATION 303 
 
 wise has its enthusiastic supporters. Some are not satisfied 
 with this partial experiment with a selected number, but 
 would like to see the system extended and applied to all 
 promising cases. This would make an ideal type of reform- 
 atory punishment. Its general organization would be about 
 as follows: the sentence would fall into two parts, the first 
 considering the evidence and the choice of punishment; and 
 then in course of punishment and upon the initiative of 
 the reformatory administration, a second sentence as to the 
 term thereof. The first would consider only the crime and 
 the criminality of the criminal at the time of the crime; the 
 second would have nothing to do with the crime and would 
 consider only the presumable morality of the prisoner at 
 the period when the sentence is imposed. 1 The decision of 
 the judge would still influence the period of the punishment, 
 but it would be operative at two points: first, in the order of 
 commitment, and second, in the order of discharge. This 
 system affords a reply to the objections that have been made 
 against the possible abuses of the system if all is left to the 
 discretion of the administration. 
 
 To complete the account of the system it should be men- 
 tioned that several degrees of indeterminateness have been 
 devised. If the first sentence, that of commitment, does 
 not set either a minimum or a maximum limit of length 
 there will be an absolute indeterminateness. This may seem 
 somewhat startling because theoretically there is the pos- 
 sibility of holding a man for life. But a relative indeter- 
 minate sentence is possible in one of several forms. It may 
 have merely a maximum limit to avoid the danger of arbi- 
 trarily prolonged detentions; but even then the indetermi- 
 nate sentence is quite different from the ordinary fixed-term 
 
 1 Sternau, "Die Abschaffung der Straf masse," Zeit. f. d. Gea. Str. R. W., 
 XIII, pp. 29-30.
 
 304 INDIVIDUALIZATION OF PUNISHMENT [ 95 
 
 sentences, for the reason that within the limit of the maxi- 
 mum period a discharge may at any time be granted when 
 it shall appear that a reform is accomplished; and again, in 
 that it is held that such limit may properly exceed the legal 
 term of the punishment under a fixed-term sentence. It 
 may be that only a lower limit is set to satisfy the notion of 
 penalty and to guarantee at least a minimum period of the 
 punishment, a period in some general relation to the 
 fixed-term sentence. It has also been suggested to combine 
 the two and permit a discharge only within the two limits. 
 It is also possible to suppose, and this would be more in 
 accord with the logic of the system instead of a maximum 
 set in each particular case, a general maximum applicable 
 to the punishment, as in the present law certain crimes 
 carry a maximum penalty. In the last hypothesis the in- 
 determinate sentence comes decidedly nearer to our actual 
 fixed-term sentences, but with conditional discharge; yet 
 there remains this difference, that the maximum necessarily 
 exceeds the normal length of punishment and that discharg- 
 ing a prisoner brings about a definite liberation, while under 
 the conditional release the punishment continues under a 
 system of virtual freedom. 
 
 If we were to make an attempt to introduce indeterminate 
 sentences, it should be done under this modified form. It 
 is true that this form retains the disadvantage that the pris- 
 oner is sure of his release at a set time, but it should be noted 
 that the time is remote and that he retains an interest in 
 effecting his reform. On the other hand, if his conduct in- 
 dicates his classification among the incorrigible, he may be 
 transferred by a new sentence to the class of hopeless cases 
 and undergo a protective punishment. 
 
 The retention of the conception of penalty requires that 
 a minimum limit of incarceration be imposed. Inasmuch
 
 96] ADMINISTRATIVE INDIVTOUALIZATION 305 
 
 as such minimum limit maintains its relation to the term 
 of punishment under fixed sentence, it follows that the judge 
 continues to apportion the punishment to the criminality 
 of the act, and that the principles involved in the concep- 
 tions of penalty and responsibility are safeguarded quite 
 as much as in the present system of conditional release. The 
 system of indeterminate sentence has the distinct advantage 
 above that of conditional release both by reason of the dis- 
 cipline it imposes and by the more favorable condition 
 attaching to the prisoner after his release; and especially 
 because of its power in cases of manifest incorrigibility to 
 prolong the sentence to its maximum term. 
 
 It would seem that the French adherents of the principles 
 of penalty and responsibility should find acceptable a plan of 
 indeterminate sentence under this form, which ' provides a 
 minimum limit as a part of the judicial sentence, or, if pref- 
 erable, both an upper and a lower limit. Indeed, under 
 this form, it is difficult to see what objections in principle 
 could be raised against the system. Unquestionably, it 
 may involve serious practical difficulties in any general 
 scheme of application; but this is another question which 
 in conclusion may be briefly considered. 
 
 96. Difficulties in the Extension of the System 
 
 Under the form specified, the indeterminate sentence may 
 be widely extended with due consideration of the objections 
 and without entering the field of experiment. It is applicable, 
 for example, to cases of commitment to educative or reform- 
 atory institutions; to houses of correction or colonies for 
 minors, asylums for the treatment of neurotics, workhouses, 
 homes for inebriates. For all these the suitability of the 
 plan is conceded. 
 
 In cases of protective punishments the system seems ac-
 
 306 INDIVIDUALIZATION OF PUNISHMENT [ 96 
 
 ceptable as a corrective of a possible mistake in diagnosis. 
 Consider the case of incorrigibles who are definitely to be 
 eliminated. They are sentenced for life. On no account 
 should a prisoner deported to a penal colony be eligible to 
 return to the mother country; otherwise, as M. Leveille has 
 well said, he will make a poor colonist, if such he can be 
 called, for he will never settle in a permanent way. This 
 applies all the more to a system which makes such life in a 
 foreign colony a premium for the more desirable and worthy, 
 but only on condition that those thus privileged should 
 become true colonists and pioneers. They are given their 
 freedom, accorded privileges, and find available a new and 
 more independent environment ready to accept persons with 
 a blot upon then* past, but upon the condition that this be 
 for life and upon a definite status. This is well enough; but 
 if it appears that a mistake has been made, if before reach- 
 ing the period of deportation to the colonies, it is found 
 that the case is capable of reform, should not the adminis- 
 tration be empowered to take the initiative, not necessarily 
 for a revision of the sentence but for a conversion of the 
 punishment? This may well be exceptional, as clemency 
 now is for the deported, but still this exceptional course 
 should not be excluded by the law. A system in which con- 
 ditions are not set in advance is better than a system de- 
 pending wholly upon administrative clemency. 1 
 
 1 See the interesting and suggestive study of M. Andreas Urbye, "Les 
 Sentences indeterminees dans le nouveau projet de Code penal norvegien." 
 (Revue penale suisse, 1898, p. 71, seq.) In it is described the first attempt at 
 a systematic and extended organization of the indeterminate system. It is 
 considered as the necessary consequence of a system of subjective classifi- 
 cation, at all events, so far as relates to punishments designed for dangerous 
 criminals; and in the Norwegian draft that corresponds, with certain im- 
 portant differences, to what we call incorrigibles. What I have just said on 
 the subject of indeterminate sentences applied to protective punishments, 
 was already written, when I received M. Urbye's study in the Revue suisse. 
 It wholly confirms the opinions I expressed.
 
 96] ' ADMINISTRATIVE INDIVIDUALIZATION 307 
 
 It is obvious that the system is not applicable to deterrent 
 punishments, since they apply to persons who stand in no 
 need of reform. In regard to corrective punishments the 
 situation is uncertain. The theory is admirable, but prac- 
 tically it is the administration that determines the sentence; 
 so that the procedure is one of administrative regulation, 
 although the court is called upon to determine the release. 
 The extension of such a system to the punishments im- 
 posed in our State institutions would be a very serious mat- 
 ter, if not wholly impracticable in the present state of 
 affairs. 
 
 It has been thus shown that the system involves a com- 
 plex and sensitive treatment, a flexibility of individual ap- 
 plication. It assumes institutions or colonies of restricted 
 capacity, arranged, as at Elmira, upon the pattern of a 
 manufactory with compulsory residence; or, it may be, with 
 provisions for outside work during the day under the super- 
 intendence of an employer; and indeed with other similar 
 arrangements. But whether such a system is possible for 
 the great mass of offenders dealt with in our prisons is an- 
 other question, for the personality of the officials of such 
 institutions must be considered. We concede that the 
 higher officials of the prison administration are in every way 
 worthy. M. Coppee's delineations in "La Coupable" must 
 not be taken too literally. Nevertheless it is an administra- 
 tive staff bound together through its routine and without 
 habit of initiative, or authority to think independently or 
 to inaugurate experiments. Innovations can be made only 
 by way of general regulations. This is not the system at 
 Elmira. It would be difficult to introduce a similar system 
 for the majority of our State prisons; even in America this 
 has not been done. 
 
 But if it were possible in France in connection with the
 
 308 JNDIVIDUALIZATION OF PUNISHMENT [97 
 
 administrative regulation of punishments to establish an 
 experimental reformatory institution on the American plan, 
 in which affairs are entrusted to a selected staff, governed 
 by a man of initiative and original ideas, such as Mr. Brock- 
 way, the plan would find general and enthusiastic ap- 
 proval. If such an institution were established, the privilege 
 would readily be obtained to permit the courts, as in New 
 York State, to choose between the ordinary commitment 
 to common-law institutions and a special commitment to a 
 reformatory under indeterminate sentence. This would 
 give the courts an additional option, something between 
 parole at the time of sentence and the common-law com- 
 mitment to ordinary penitentiaries. If the experiment is 
 adjusted to our conditions, it is sure to be extended. Re- 
 formatories will be multiplied, and we shall have individ- 
 ualization of punishment brought to its most complete 
 perfection. 1 
 
 97. The Personal and Religious Factors in Reform 
 
 The religious element must likewise be considered. In 
 America the religious spirit has been actively maintained. 
 It serves as a personal incentive, as a source of individual 
 inspiration and fruitful initiative. To create missionaries 
 for the work of social regeneration, conferring upon them a 
 humane disposition and an enthusiastic faith seems, indeed, 
 to have been the mission of the Protestant spirit. This per- 
 sonal spirit is necessary to bring about such a movement as 
 that at Elmira, and equally to ensure its general success and 
 to accomplish a special service in each individual case, by 
 
 1 The following references may be added to the bibliography cited 
 by M. L6vy in his thesis, cited above, on "Les Sentences indeterminees " : 
 Vargha, cited above, II, p. 506, seq., and Schmidt, "Die Aufgaben der 
 Strafrechtspflege" (1895), p. 290, seq.
 
 97] ADMINISTRATIVE INDIVIDUALIZATION 309 
 
 stimulating endeavor and a regeneration from within on the 
 part of these unfortunates tainted by crime, who are never- 
 theless candidates for re-entrance into life under new auspices. 
 All such reforms are the work of personal initiative and in- 
 dividual character. In matters of moral reform such initia- 
 tive can but be a work of the religious life in the large sense 
 of the word. This spirit of personal influence in the field 
 of the religious conscience appears at the present time to be 
 gaining among all Christian churches. The movement, in 
 America, has spread even to the inclusion of Catholicism. 
 It leaves untouched the dogmas of the Church and the feel- 
 ing of inspiration attaching to indemonstrable truths, yet, in 
 all that bears upon the essentials of the inner life and the 
 individual attitude thereto, it becomes infused with a re- 
 generation of that spirit of high aspiration and free initia- 
 tive which characterized the faithful in mediaeval times. 1 In 
 some respects we, in France, may have the same opportunity 
 to further free initiative in religious matters, and, what is 
 more urgent, to facilitate the rebirth of a personal and in- 
 dividualized religious life. Such a confession should become, 
 on the part of those whose moral regeneration is to be effected, 
 the earnest and permanent work of their own consciences, 
 in place of being, as is too commonly the case, a readily 
 repeated and promptly forgotten lesson imitatively learned. 
 When this spirit shall have entered such of our reformatory 
 institutions as may then properly be called select, it will 
 become peculiarly easy to reproduce in France what has 
 been accomplished at Elmira. This moral factor is one 
 which each may appraise as he prefers in terms of its real 
 nature, but whose reformatory value no criminologist can 
 
 1 See particularly the "Vie du P. Hecker," published (in translation) 
 by Lecoffre, 1897, and the "Vie du cardinal Manning," by M. de PressensL 
 See also my review of Fogazzaro's novel "H Santo," in La Quinzaine, Febru- 
 ary 1 and 15, 1906.
 
 310 INDIVTOUALIZATION OF PUNISHMENT [97 
 
 afford to neglect, for there can be no more powerful lever 
 for the reform of conscience and the return to a moral atti- 
 tude. The Zweckstrafe, which considers punishment for its 
 future benefit, has precisely this purpose. 
 
 The appeal to personal initiative, which is made by in- 
 dividualization and other social measures incorporated in 
 the penal regime, is at length becoming the watchword for 
 all seriously concerned with the need of a change in the 
 public attitude towards these questions. Without exag- 
 gerating the analogy, it is proper to recognize that between 
 the obligations which material distress imposes upon society 
 and those due to moral distress, there is an unmistakable 
 resemblance, at all events in the resulting conditions. They 
 are the shortcomings of humanity in general and of our civil- 
 ization in particular. It would be objectionable to hold 
 that distress is a vice of those afflicted by it, for it is equally 
 a vice of society. This is true of poverty, and it comes near 
 to being true of criminality. Moral and material wretched- 
 ness so commonly associated are often the issues of one an- 
 other. 1 The present tendency is to relieve material poverty 
 by measures of true individualization and personal initia- 
 tive; these replace administrative and even sectarian charity, 
 which is but a charity administered by rule, apt to make 
 paupers instead of making poverty an incidental misfor- 
 tune. Poverty requires the aid that relieves and does not 
 encourage the condition itself. There are at present societies 
 guided by this spirit of individualization; they dispense 
 with any regular form of administering charity and leave 
 to their members the duty of assisting the poor and un- 
 employed to such positions as they are capable of filling. 
 They do this through personal interest and through the 
 
 1 See the excellent address of M . I'abb6 Maurice de Baets, "Les Influences 
 de la misere sur la criminalite" (Gand, 1895).
 
 97] ADMINISTRATIVE INDIVIDUALIZATION 311 
 
 various provisions that the organization of their work places 
 at their disposal. 1 
 
 The provisions for relief of material distress must be ap- 
 plied to moral distress; and in place of punishment admin- 
 istered by rule and with an invariable uniformity, we ask 
 for a system of individual superintendence through which 
 the individual initiative may be appealed to, and the most 
 suitable measures of assistance provided for each case. 
 There are many offenders, and equally many of the un- 
 fortunate poor, whose contact with crime is but a phase of 
 then* existence, who pass through it without belonging to 
 it body and soul. They experience a crisis and must be 
 helped through it. In this service punishment should be 
 one of the most effective measures. It must be wisely util- 
 ized, but, to be thus utilized, there should be no conceal- 
 ment of the need of repentance and expiation, for that alone 
 can effect a revival of conscience. If the interests of social 
 protection were alone considered, convicts might be treated 
 like hounded animals and not like men; but that is not the 
 way to bring about their reformation. 
 
 Of all the theories proposed as a basis of punishment, to 
 the exposition of which this book is devoted, this last seems 
 the only one likely to enlist the good will of all and to involve 
 no abandonment of principle. 
 
 The classic system will be acceptable only to those 
 and they are few in number who hold to the belief in free 
 will in its traditional form. The extreme position of the 
 Italian school appeals only to the determinists of a mate- 
 rialistic trend. This irreconcilable difference of view will 
 
 1 See the fine address of M . Jules Lemaitre at the general meeting of Jan- 
 uary 30, 1898, of the " Societ charitable des visiteurs pour le relevement des 
 families malheureuses " (in Figaro. January 31, 1898; reprinted, with the 
 report of M. Bazin, in the Bulletin de I' Union pour I' action morale, March 1, 
 1898, p. 411, teq.).
 
 312 INDIVIDUALIZATION OF PUNISHMENT [ 97 
 
 continue. If the problem be shifted to the field of practical 
 results, while still holding to the authority of the principle 
 of responsibility, a common ground seems available. Re- 
 sponsibility is adhered to, but it involves no conclusion 
 incompatible with the conceptions of the positivist school; 
 and in turn, among the tenets of this school, there is none 
 that need be so interpreted as to be opposed to the idea of 
 responsibility. The difference is one of theory and belongs 
 to the field of individual opinions and convictions of con- 
 science. In either case, the punishment as applied and in 
 the nature of its discipline will be the same and similarly 
 organized. The one system looks upon punishment as a 
 penalty directed to the interest of social defense, and the 
 other regards it wholly as a measure of social security; but 
 this difference will not affect the practical measures in re- 
 gard to which men of science and philanthropists are in full 
 accord. This is substantially the point of view and the 
 watchword of the International Union of Criminal Law; 
 and it has been the purpose of this book to set forth the 
 evidence of its worth. 1 
 
 1 Since 1898 the system of indeterminate sentences has stimulated many 
 discussions and publications, in addition to the general works on criminology 
 and penal science which necessarily consider it; notably Prins, "Science 
 penale et droit positif," pp. 453-460. 
 
 We mention first of all, especially on the application of the system in 
 America, Teutsch, "Methodes penales et penitentiaires des Etats-Unis" 
 (Revue pSnitentiaire, 1905). Articles devoted entirely to indeterminate 
 sentences are (in chronological order), Tarde (Revue penitentiaire, 1899), 
 p. 1087; Malpel, "Essai sur la mise en pratique de la sentence indetenninee " 
 (Thesis, Toulouse, 1900) ; Salomon Rapoport, " Les sentences indeterminees " 
 (Revue Internationale de sociologie, Giard et Briere, 1904); Gras, "Des sen- 
 tences indeterminees" (Thesis, Paris, 1905); Roux, "Les sentences inde- 
 terminees et 1'idee de justice" (Revue penitentiaire, 1905), p. 3.660. 
 
 At the International Prison Congress held at Washington, in October, 
 1910, the First Section formally voted to "approve the scientific principle 
 of the indeterminate sentence." This was the first occasion on which an In- 
 ternational Congress had given such approval, and demonstrates the prog- 
 ress of thought on this subject. ED.
 
 97] ADMINISTRATIVE INDIVIDUALIZATION 313 
 
 One may say that the general tendency nowadays is to discard the abso- 
 lute indeterminateness of the sentence by reason of its possible encroach- 
 ment of personal liberty through the autocracy of the administration. A 
 relative indetenninateness is preferred, that is, the fixation by law and the 
 judge of a minimum and a maximum sentence. This system of relative 
 indeterminateness has been legally authorized by the Norwegian penal 
 code. According to the terms of Article 65 of that code, when a person is 
 guilty of one of several crimes which the law specifies, "the court may put 
 to the jury the question of determining whether the author of these acts, 
 by reason of the nature of the crime, of the motives which have directed it, 
 of the impulses which it discloses, may be considered as peculiarly harmful 
 to society or to the life, health, and welfare of particular persons." In case 
 of an affirmative, the sentence may specify, at the expiration of the punish- 
 ment, a supplementary detention which must not exceed the three-fold 
 period of the punishment, or in any case be more than fifteen years. (For 
 a critical opinion of Art. 65, see the preface of M . Gorgon, p. xviii.) 
 
 For the points of resemblance between indeterminate and alternative 
 sentences, such as obtain in England, see the final note of the preceding 
 chapter, p. 293, note. 
 
 To return to disciplines applicable to individuals undergoing reforma- 
 tory punishment in appropriate institutions, it seems likely that there will 
 be established experimentally and for certain types of offenders, what may 
 be called an out-door prison, which is to serve as a gradation between im- 
 prisonment and freedom under surveillance. For one of the greatest dis- 
 advantages even of a short-term detention is that it takes a man away from 
 his work, and consequently from his source of livelihood. And in another 
 respect this is a most unequal punishment, because in the case of those who 
 have a manual trade or who practice an industrial or commercial vocation, 
 it often amounts to ruin; while it has no effect at all upon those who have a 
 sufficient fortune not to be dependent upon a lucrative calling. Would it 
 not be possible to permit these persons to exercise their vocation with noth- 
 ing to mark them off from their companions except the requirement to re- 
 turn to the institution at evening ? The experiment would carry a more 
 general advantage, namely, that of accustoming their employers, and as well 
 their fellow-employees, respectively to employ and to be considerate to those 
 who have served a sentence for an accidental transgression.
 
 INDEX
 
 INDEX 
 
 [REFERENCES ABE TO PAGES] 
 
 Adickes, Erich, 180 n. 
 
 Alienation, see Crime and abnormal 
 
 condition. 
 
 Alimena, 69 n., 125 n., 165 n., 223 n. 
 Ancyrus, Council of, 201. 
 Anderson, Sir Robert, 19 n., 34 n., 
 
 136 n. 
 
 Andreades, 293 n. 
 Aquinas, Thomas, 40 n. 2, 66 n. 2. 
 Aschrott, 110 n., 214 n. 1. 
 Aubry, Octave, 114 n., 215 n. 
 
 B 
 
 Bachem, 218 n. 
 
 Baer, 130 n. 
 
 Baets, Maurice de, 310 n. 
 
 Balfour, 179 n. 2. 
 
 Ballet, Gilbert, ii n., vi n., 98 n. 
 
 Ballv6, Antoine, 136 n. 
 
 Bartmann, 36 n. 1. 
 
 Batardy, 284 n. 
 
 Bazin, 311 n. 
 
 Beaudouin, 24 n. 4, 27 n. 2. 
 
 Beccaria, 52, 100. 
 
 Bentham, 52. 
 
 Be>enger, Law of, see Law. 
 
 Bernhoft, 24 n. 3. 
 
 Binding, 49 n. 
 
 Birkmeyer, 138 n. 3. 
 
 Blondel, Maurice, 173 n., 179 n. 2. 
 
 Borstal System, 286 n. 
 
 Boudinhon, A., 199 n. 2. 
 
 Bouton, R., 201 n. 2. 
 
 Briand, 96 n. 
 
 Brockway, 299, 300, 301, 308. 
 
 Brunetiere, 179 n. 2. 
 
 Brunner, 24 n. 3, 27 n. 1, 32 n. 1. 
 
 Bufnoir, vi, viii, be, xii n. 
 
 Calvin, 36 n. 2. 
 
 Carnevale, E., 125 n., 126 n., 227 n. 1. 
 
 Carrara, 100. 
 
 Cathrein, 152 n. 
 Chiaroni, 215 n. 
 Circumstances, 
 
 extenuating, see Extenuation. 
 
 of crime, see Crime, circum- 
 stances of. 
 
 Classic School, see School, Classic. 
 Clement XI, Pope, 203 n. 3. 
 Coconnier, P., 172 n. 2. 
 Colajanni, 132 n., 278 n. 
 Complicity, see Crime, complicity 
 
 in. 
 
 Comte, xi. 
 Conti, Ugo, 62 n., 256 n., 257 n., 
 
 278 n. 
 Contingent liability, see Crime, 
 
 contingent. 
 Coppe"e, 307. 
 Coulanges, Fustel de, 24 n. 3. 
 
 27 n. 2. 
 Crime, 
 
 and abnormal condition, 77-79, 
 80-82, 142, 143. 
 
 and criminology, 84. 
 
 and pathology, 4. 
 
 and punishment, 13, 117, 120, 
 193. 
 
 and sin, 33, 197, 198. 
 
 and society, 13, 186, 187. 
 
 and sociology, 4. 
 
 as symptom, 117, 133. 
 
 circumstances of, see Crime, 
 objective. 
 
 complicity in, 221, 225. 
 
 contingent, 221, 263, 263 n. 1, 3. 
 
 classic conception of, 7. 
 
 factors of, 102, 279. 
 
 materiality of, 5. 
 
 objective, 5, 31-33, 46, 47, 186, 
 187. 
 
 of passion, 256-258. 
 
 political, 205, 253-256. 
 
 subjective. 31, 33, 84, 205. 
 Criminal and Criminality, 
 
 accidental, 271. 
 
 and premeoitation, 69. 
 
 317
 
 318 
 
 INDEX 
 
 Criminal and Criminality Cont. 
 
 as abnormal, 83, 130, 131. 
 
 as alien, 94, 155-157, 268. 
 
 confirmed, 103, 207. 
 
 diagnosis of, 127-132, 133, 296, 
 297. 
 
 dynamic and static, 276-278. 
 
 making of, 104-106, 121, 148- 
 149, 216, 217, 310, 311. 
 
 prevention of, 123. 
 
 promiscuity of, 106, 112. 
 
 protection against, 123. 
 
 reform of, 131, 287, 289. 
 
 subjective aspect of, 45. 
 
 types of, 118-122, 127, 128, 
 
 144, 270-274, 278-282. 
 Crisenoy, de, 283 n. 
 Crofton, Walter, 110. 
 Cruppi, 228 n. 
 
 Cuche, xii, 17 n., 18 n., 136 n., 181 n. 
 Curel, de, 154 n. 
 
 D 
 
 Dantec, Felix le, 169 n. 1. 
 
 Delaquis, Ernest, v. 
 
 Deportation, see Punishment, as 
 
 deportation; Individualization. 
 Desdouits, 179 n. 1. 
 Desjardins, Albert, 129 n. 
 Desjardins, Paul, 231 n. 
 Determinism, 57, 67, 151, 177-179. 
 Dobresco, 156 n. 1. 
 Dostoiewsky, 130 n., 213 n. 2, 254. 
 Dubois, ii n., vi n. 
 Durkheim, 20 n., 24 n. 1. 
 Duval, Raoul, 42 n., 221 n. 1. 
 
 E 
 
 Ecclesiastical law, see Law, ecclesi- 
 astical. 
 
 Eliot, George, 88 n. 
 
 Elmira system, 298-301. 
 
 Encyclopedists, 53. 
 
 Engelmann, 35 n. 1, 40 n. 1. 
 
 Esmein, 20 n., 27 n. 1, 51 n. 
 
 Extenuation of circumstances. 58, 
 76, 79, 82. 
 
 Eycken, Paul van der, 19 n. 
 
 Ferri, 102, 102 n., 103, 116, 136 n., 
 
 278 n. 
 
 Ferriani, L., 130 n. 
 Feuerbach, 52. 
 
 Flandin, Etienne, 283 n. 2. 
 
 Fogazarro, 309 n. 
 
 Fonsegrive, 40 n. 2, 66 n. 1, 175 n., 
 
 179 n. 1. 
 
 Fouillee, xiii, 67, 105 n., 175 n. 
 France, 50, 51. 
 
 Franck, Reinhard, 19 n., 98 n., 136 n. 
 Frassati, 129 n. 
 Fredus, 27, 28. 
 Freedom, see Responsibility and 
 
 freedom. 
 
 Free Will, 64, 175-177, 197, 198. 
 analysis of, 65-67, 170-172. 
 conditions of, 71, 72, 85, 178. 
 see also Punishment; Responsi- 
 bility and freedom. 
 French Empire, 50. 
 French Revolution, 50, 54. 
 Frins, P., 179 n. 1, 199 n. 1. 
 Fulliquet, 139 n. 
 Fustel de Coulanges, see Coulanges. 
 
 G 
 
 Garcon, iv, v, 19 n., 62 n., 98 n., 
 
 223 n., 254 n., 259, 293 n., 312 n. 
 Garofalo, 102, 135, 242, 278 n., 
 
 280 n. 
 Garraud, v, 19 n., 62 n., 139 n., 169 
 
 n. 2, 221 n. 3. 
 Gauckler, 136 n. 
 Gautier, Alfred, 274 n. 1. 
 G6ny, 19 n. 
 Giddings, 157 n. 
 Glasson, 27 n. 1. 
 Gospel, see St. John, St. Luke, St. 
 
 Mark, St. Matthew, St. Paul. 
 Granier, 129 n. 
 Gras, 312 n. 
 Grasset, ii, 98 n., 181 n. 
 Gretener, 78 n., 143 n. 
 Gumplowicz, 28 n. 2, 157 n., 164 n. 
 Gunther, 30 n., 35 n. 1, 203 n. 2. 
 Guyho, Corentin, 96 n., 126. 
 
 Hamel, van, 144 n. 
 Haracourt, 38 n. 
 Hatzfeld, 36 n. 2. 
 Hecker, 309 n. 
 Hefele, 201 n. 1. 
 Hinschius, 35 n. 1, 203 n. 2. 
 Historical School, see School, His- 
 torical. 
 
 Holtzendorff, 223 n., 238 n. 1. 
 Hymans, Paul, 213 n. 2.
 
 INDEX 
 
 319 
 
 Ihering, 49 n. 
 Imbert, 46 n. 
 Individualization, 
 
 administrative, 12, 294 n., 295 
 
 seq. 
 and responsibility, 183, 272, 
 
 276. 
 
 and the jury, 95-97, 232-236. 
 in deportation, 206-209. 
 in political crime, 253-256; see 
 
 also Crime, political, 
 judicial, 12, 48, 50, 223, 227- 
 
 230, 237 seq., 293 n. 
 legal, 12, 220 seq., 262-266. 
 moral aspects of, 192-195. 
 of the Italian School, 119. 
 principles of, 260-262. 
 
 types of (including false), 11, 
 12, 44-47, 220, 223-226, 235, 
 237-239, 298, 303. 
 Infamy, see Punishment and in- 
 famy. 
 
 Infanticide, 200, 201, 223. 
 Ingegnieros, Jos6, 136 n. 
 Insanity and crime, see Crime and 
 
 abnormal condition. 
 Intimidation, see Punishment, de- 
 terrent. 
 Irresponsibility, see Responsibility 
 
 and irresponsibility. 
 Italian School, see School, Italian. 
 
 Jansen, 36 n. 2. 
 
 Joly, Henry, 62 n., 105 n., 130 n. 
 
 Jousse, 46 n. 
 
 Judge, 
 
 discretion of, 57, 227-229. 
 
 education of, 231. 
 
 functions of, 47, 48. 
 Julhiet, Ed., 294 n. 
 Jury. 
 
 history of, 11. 
 
 hi individualization, 232-236. 
 
 attitude of, 10, 11, 93-95. 
 
 special types of, 233. 
 
 Keller, 174 n. 1. 
 Kohler, 30 n. 
 Kovalevsky, 24 n. 3. 
 Kraus, 239 n., 249 n. 
 Krohne, 111 n. 
 
 Laberthonniere, P., 179 n. 2. 
 Law 
 
 and minors, 76, 294 n. 
 
 and social protection, etc., see 
 
 Social, etc. 
 Berenger, xvi, 195, 212, 213, 
 
 216, 217, 229, 288. 
 ecclesiastical, 191, 192. 
 French, of 1854, 110. 
 of 1875, 113, 211. 
 of 1885, 17, 223, 286. 
 of 1891, 210, 212. 
 Germanic, 24, 199. 
 responsibility in, 39-42. 
 Roman, 27. 
 
 Salic, 26, 34, 54, 55, 199. 
 Lea, Henry C., 199 n. 2. 
 Legrand, 69 n., 98 n., 223 n., 239 n. 
 Lemaitre, Jules, 311 n. 
 Le Play, xi. 
 Le Poittevin, A., iv, 62 n., 98 n., 
 
 216 n., 292 n. 
 Leredu, 98 n. 
 Leveille, 62 n., Ill n., 113, 208 n., 
 
 260, 306. 
 
 Levy, Frederic, 299 n., 301, 308 n. 
 L6vy-Bruhl, 175 n., 179 n. 1. 
 Liepmann, 53 n. 
 Lippert, 24 n. 3. 
 
 Liszt, von, 9 n., 49 n., 56, 87, 98 n., 
 129 n., 136 n., 137, 138, 138 
 n. 1, 2, 139 n., 141 n. 1, 
 142 n., 147 n., 150, 165 n., 
 184, 218 n., 219 n., 221 n. 1, 
 239 n., 245 n., 278 n. 
 Theory of Rechtsgiiter, 49. 
 Loffier, 30 n., 32 n. 1, 3, 35 n. 1, 
 
 41 n. 1, 165 n. 
 Lombard, Peter, 66 n. 2. 
 Lombroso, 19 n., 101 n., 102, 103, 
 103 n., 116, 118, 122, 127, 128, 
 129, 130, 132, 137, 275, 284. 
 Louis XIV, edict of, 48. 
 Lucchini, 129 n. 
 Luther, 36 n. 2. 
 
 M 
 
 Mabille, G., 181 n. 
 Magistrate, see Judge. 
 Makarawicz, 4 n., 16 n. 3. 
 Mallieux, 19 n. 
 Malpel, 312 n. 
 Mancini, 257. 
 Manning, 309 n. 
 Marx, Karl, xi.
 
 320 
 
 INDEX 
 
 Maudsley, 143 n. 
 
 Merkel, 16 n. 2, 35 n. 2, 160 n., 172 
 
 n. 1. 
 
 Meynial, 19 n. 
 
 Minors, see Law and minors. 
 Mitigation, see Extenuation. 
 Mittlestadt, 16 n. 2, 213 n. 1. 
 Molinists, 40 n. 2. 
 Montgomery, H. J. B., 136 n., 145 
 
 n. 1, 213 n. 2, 300 n. 
 Mprality ; see Punishment, moral 
 
 issues in. 
 
 Moriaud, Paul, xii, 85 n. 
 Morin, Gaston, iv. 
 Morlot, Emile, 219 n. 
 Morrison, 130 n. 
 Motive, 224, 239-253, 264; see also 
 
 Responsibility, moral nature of. 
 Mumm, 214 n. 1. 
 Muyart de Vouglans, 153. 
 
 N 
 
 Neret, 98 n. 
 
 Normality, see Punishment and 
 normality. 
 
 O 
 
 Offender and offense, 
 
 first, 59; see also Recidivist. 
 Olshausen, 259 n. 
 Oppenheim, 214 n. 2. 
 Ortolan, 62 n. 
 
 Pardon, see Parole and Pardon. 
 Parole and Pardon, 192, 204, 212- 
 214, 215-218, 219 n., 229, 230, 
 289. 
 
 Payot, 179 n. 2. 
 Pellizari, 37 n. 
 Penal Code, 
 
 Austrian, 80. 
 Dutch, 186, 227 n. 2. 
 French, 6 n., 10, 18, 76, 79, 203. 
 of 1810, xiv, 56-58, 73, 74, 
 
 182, 183. 
 of 1791, 54. 
 German, 80, 259. 
 Italian, 6, 7 n., 80, 100, 101, 
 
 224 n., 256-260, 262. 
 Norwegian, 19 n., 293 n., 313. 
 Swiss, 78 n., 146 n., 222 n. 
 Penalty, see Punishment. 
 Penance, 198, 199-203. 
 Penitentials, 199, 199 n. 2. 
 Penology, see Crime; also School. 
 
 Personality, see Responsibility and 
 
 personality. 
 Picard, L., 196 n. 1. 
 Post, 24 n. 3. 
 
 Premeditation, 68, 69, 72, 223 n. 
 Pressens6, de, 309 n. 
 Prins, 18 n., 132 n., 177 n., 312 n. 
 Progressive system, see Punish- 
 ment, progressive system. 
 Promiscuity, see Criminal and 
 
 Criminality, promiscuity of. 
 Punishment, 
 
 and free will, 179-181, 188, 189, 
 
 212; see also Responsibility. 
 
 and infamy, 206, 255, 267-269, 
 
 269 n. 
 and motive, 247-251; see also 
 
 Motive, 
 and normality, 140-144, 162, 
 
 163, 164. 
 as deportation, 110, 204, 206- 
 
 209, 258, 292, 306. 
 as expiation, 29, 37-39. 
 as private vengeance, 21. 
 as reparation, 59-61. 
 as risk incurred, 33, 190. 
 as solitary confinement, 109, 
 
 113, 211, 283. 
 as Wergild, see Wergild. 
 conception of, 187-189. 
 degrees of, 187, 238, 275. 
 deterrent, 125, 126, 145-147, 
 165 n., 208, 270, 271, 284, 
 285, 288, 290. 
 
 divine, see Punishment as ex- 
 piation, 
 equality of, see Punishment, 
 
 uniform. 
 
 exemption from, 83. 
 indeterminate, 298-301, 301- 
 
 305, 312 n. 
 
 in the primitive clan, 25, 26. 
 long-term and short-term, 109, 
 
 209 seq. 
 
 mitigation of, 201, 224-226, 
 257-259; see also Extenua- 
 tion, 
 moral issues in, 139, 193-195, 
 
 213, 251-253, 268, 309. 
 parallel, 259, 262, 265-268, 271, 
 
 273. 
 preventive, see Punishment, 
 
 deterrent. 
 
 private and public, 28. 
 progressive system, 110, 291. 
 purpose of, 116-118, 195, 218. 
 reformatory, 194, 270, 291, 307. 
 special, 263-266, 283, 285.
 
 INDEX 
 
 321 
 
 Punishment Cont. 
 
 uniform, 59, 61, 112, 261, 262. 
 
 variable between limits, 58. 
 Puybaraud, 130 n. 
 
 R 
 
 Rapoport, Salomon, 312 n. 
 Rechtsgiiter, 49; see Liszt. 
 Recidivist, see Criminal and Crim- 
 inality. 
 
 Relegation, see Punishment as de- 
 portation. 
 
 Reparation, see Punishment as rep- 
 aration. 
 Responsibility, 
 
 and crime, xiv, xvi, 33, 75. 
 and freedom, 56, 96, 166, 168- 
 172; see also Free Will; 
 Punishment. 
 
 and irresponsibility, 77-79. 
 and moral nature, 159-162, 
 
 164, 191, 192. 
 and normality, see Punishment 
 
 and normality. 
 and personality, 173, 174. 
 and punishment, see Respon- 
 sibility and crime, 
 and reason, 158, 159. 
 and will, 43. 
 conception of, 35, 87. 
 
 in Christianity, 35-37, 55, 
 
 191, 192. 
 
 degrees of, 81, 82, 168. 
 individualization and, see In- 
 dividualization. 
 in ecclesiastical law, see Law, 
 
 ecclesiastical, 
 partial, 142, 226. 
 practical, 158-160. 
 remote and immediate, 87-90. 
 Richard, Pierre,Illl n. 
 Rigaud, 223 n., 239 n., 254 n. 
 Riviere, L., 274 n. 2. 
 Rossi, 62 n., 100, 103. 
 Rostand, Eugene, 105 n. 
 Rousseau, 20, 52, 53, 53 n., 54. 
 Rousseau de la Combe, 153. 
 Roux, 141 n. 1, 312 n. 
 
 S 
 
 Sabatier, A., 36 n. 1, 174 n. 2. 
 
 Sacharoff, C., 219 n. 
 
 Salic Law, see Law, Salic. 
 
 Schmidt, 308 n. 
 
 Schmitz, 199 n. 2, 201 n. 1, 3. 
 
 Schofield, Henry, 255 n. 
 Scholastics, 39, 44. 
 School, 
 
 Classic, 51, 52 seq., 114. 
 
 Historical, 51. 
 
 Italian, 16, 99 seq., 115, 119, 
 
 132, 134, 135, 150. 
 and individualization, see 
 Individualization of the 
 Italian School. 
 
 Neo-Classic, 63 seq. 
 
 "Third Italian," 125. 
 Schroder, 30 n. 
 Schwinderem, van, 26 n. 
 Seigneux, de, 96 n. 
 Sentence, see Punishment. 
 Sieves, 116. 
 
 Sighele, 102, 156 n. 2, 267 n. 
 Sin, see Crime. 
 Social, 
 
 interests, 49, 189. 
 
 in punishment, 89, 90, 219. 
 
 regulation, 73. 
 
 responsibility, 90-93, 155, 156, 
 185, 186; see also Sociology. 
 Sociology, 
 
 purpose of, 2, 115; see also 
 Crime and sociology; Social. 
 Sohm, 22 n., 27 n. 1. 
 Speyr, D. von, 83 n. 
 Stammler, 174 n. 1. 
 St. Augustine, 36 n. 2. 
 St. Bernard, 40 n. 2, 197 n. 2. 
 St. John, 197 n. 1, 198 n. 1, 2. 
 St. Luke, 35 n. 2, 198 n. 1, 2. 
 St. Mark, 196 n. 2, 198 n. 1. 
 St. Matthew, 35 n. 2, 198 n. 1, 2. 
 St. Paul, 36 n. 1, 195 n., 198 n. 3, 4. 
 Sternau, 303 n. 
 Stooss, 87 n., 142 n., 145 n. 2, 146 n., 
 
 224, 253 n. 
 Sumien, 81 n. 
 
 Tacitus, 24 n. 2. 
 
 Taine, 50 n. 
 
 Tarde, Gabriel, v, vi, ix, xi n., 2 n., 
 16 n. 1, 28 n. 1, 102, 126, 
 130 n., 136 n., 148 n., 155, 
 156, 185, 278 n., 312 n. 
 Introduction by, xi, xvii. 
 
 Temibilita, 69, 117, 150. 
 
 Teutsch, 312 n. 
 
 Thaller, iv. 
 
 Thibierge, 221 n. 2. 
 
 Thonissen, 30 n.
 
 322 
 
 INDEX 
 
 U 
 Urbye, Andreas, 287 n. 2, 306 n. 
 
 Vagrant and Vagabond, 283. 
 Vargha, 125 n., 134 n. 1, 203 n. 1, 
 
 213 n. 1, 308 n. 
 Vence, C. de, 227 n. 1. 
 Vergeltungsstrafe, 5, 8, 9. 
 Vidal, 129 n., 293 n. 
 Viollet, 27 n. 1, 199 n. 2. 
 Volition, see Responsibility and 
 
 will. 
 
 W 
 
 Wahlberg, 39 n., 86 n., 134 n. 2, 
 
 278 n. 
 Wergild, 23-27, 30 n., 31, 33, 190, 
 
 199. 
 
 Wernle, 36 n. 1. 
 Will, see Responsibility and will. 
 
 Wills, Sir Alfred, 136 n., 286 n. 
 
 Z 
 
 Zurcher, 78 n. 
 Zweckstrafe, 8, 9, 310.
 
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