THE PUNISHMENT OF CRIME.*
THE practical mind of the average Englishman, secure in the .protection of a competent and incorruptible bench, a mag- nificently manned and organized police force, and a criminal law which he has come to regard as hardly less sacred than the Scriptures, is apt to look upon the interminable warfare of foreign criminologists as mildly ridiculous if not posi- • (1) Criminal Pe/shalom By Hans Gross. Translated by Horaoe M. Mallon. 117s. not.1 (2) Modern Theories of Crmlnality. By C. B. de Quiros. `Translated by A. de Balvio. (14a. net.] (3) Crime r its Causes and Remedies. Ily C. Lombroso. Translated by H. P. Horton. [16e. not.] (4) The Indi• vidualisation of Punishment. By B. &lollies. Translated by B. S. Jastrow. glee. net.] All published in William Heinemann's "Modern Criminal &knee Series."•—(S) The Criminal and the Community. By Dr. J. Devon. London: John Lane. Len not.)
tively harmful. None the less it cannot be gainsaid that the professors of this much-abused science have in late years widely and powerfully affected the thought and practice of Europe, so powerfully indeed that even our own code has not escaped their influence, but has embodied in the Probation of Offenders Act 1907 and those parts of 8 Ed. VII., c. 59, which provide for the reformation of young offenders and the prolonged detention of habitual criminals, methods begotten of this same science and directly in contradiction of the established policy of our law. It would be no bad thing, therefore, if Englishmen (whose system in many ways fails sadly of perfection) were to acquire a somewhat deeper knowledge of the _tendency of foreign opinion in these matters, and the enterprise of Mr. Heinemann in adapt- ing the " Modern Criminal Science" Series for the English student has at last given him an excellent opportunity of so doing. This series owes its existence to the American Institute of Criminal Law and Criminology, one of the principal objects of which is to make accessible to the English-speaking peoples the most important modern works in foreign languages on this most important subject. The first four volumes which their labours have produced fully justify the undertaking, and it is to be hoped that the series will find many readers. The first volume of the list, Professor Gross's Criminal Psychology, though perhaps the most interesting of the whole series to the layman, is not of so much importance to the English student as are its successors. In this book the author, who us a police magistrate and a professor of criminal law at Graz has both academic qualifications and practical experience, attempts a task truly heroic. His work is, indeed, no less than a treatise on the powers, limitations, and aberrations of the human mind as displayed in the giving of legal testimony. He approaches the subject from the point of view of the judge—the judge that is under a foreign system of law where the bench plays to a large extent the parts of judge, jury, and counsel. It is for this reason that the book is not likely to be of much service to English practitioners, who are accustomed to a system in which the different functions are divided. None the less the writer is at once so learned a psychologist and so keen a student of human nature that there is no one who would not benefit from a careful study of this closely packed volume'. With many of his conclusions—notably some of those regarding the differentiation of the male and female mind—one would be tempted to disagree, but all are the fruit of a sane judgment, of wide study and close application. If one might venture on a general criticism it would be that the author is apt to forget the immediate object of his work and to launch into studies on Htime's " Scepticism," Mill's " Science of Logic, on the Theories of Probability, Chance, and Causation," so intricate as rather to obscure the real issue. From a practical point of view probably the most valuable parts of the book are those dealing with sense perceptions, the mechanism of thinking, the memory, the will, the expression of emotion (where he draws largely on Darwin), and kindred subjects.
The remaining three books of the series all deal from one point of view or another with the causation and remedy of crime. The two subjects are, of course, closely connected, though capable of separate treatment, and indeed it is to changed views on the causation of crime that the recent changes in systems of punishment owe their
origin. It was Cesare Lombroso who, whatever we may think of his actual conclusions, with the publication in 1876 of his L'Uomo Delinguente, first set the world thinking. One of Lombroso's latest works is included in the series now under review, and shows that he himself came at the end of his life to recognize that the belief which had dominated his early labours was, if not actually false, at any rate largely exaggerated. That belief was, as is well known, the conviction that the criminal is a distinct species of humanity, an anachronism, an accidental reversion to an ancestral type. The theory raised a storm of opposition and a counter storm of support. • In the conflict which ensued it has, as a solution of .. the problem, practically disap- peared; but it has borne fruit none the less. The con- troversy set people pondering . as to what is in fact the meaning and cause of crime. Beccaria and our own Maudeley—not to mention others—bad attacked the pro- blem before but -without arousing the world's sympathy. Ite
now became one of the problems of the hour. A hundred different answers were found to it, the most complete of all being, probably, that of Ferri, which is called by students the -" Theory of Factors." This theory divided the causes of crime into three classes—individual or anthropological, physical or natural, and social. Scores of other explanations were sug- gested during the controversy, the course of which is excellently set out in Senor de Quiros' volume. The physio- logists pinned their faith now on epilepsy, now on nerve 'weaknesses, now on degeneration (which Lombroso himself came tto regard as a cause of his " atavism "); while, on the other side, those who looked for a social origin found it now in an in. .ability of the individual to adapt himself to the requirements of society, now in the opposite and obscure doctrine of "segregation,". now in parasitism, now in the extreme Socialist view that crime is due to the criminal law, being in tact the reaction of the oppressed against a law which has been invented by the ruling classes to buttress their own unearned superiority. One need not go into these various theories in detail. No one of them is a complete explanation, though probably each of them contains some modicum of truth, and science is able now to sift them and take the residuum of each.
The progress of this assimilation is clearly shown in the work of Lombroso which this series includes. The author, it is true, still regards the "organic" or anthropological factor as accounting for 40 per cent. of existing crime, but two-thirds of his book are devoted to the analysis of other influences. Thus. he shows clearly the effect pro- duced upon the curve of crime by variations of tempera- Sure, climate, soil, and race. He shows that civilization, while decreasing the degree of crime, does not decrease Fits quantity, but substitutes new forms of deliction for the Old. The action and interaction of density of population, poverty, and alcoholism are also discussed with an astonishing wealth of statistics, the use of which is, on the whole, both sane and discriminating, and the whole book presents a view .of the world's criminality which is not to be gained from any ether work in our language.
A consideration of the teachings of modern research shows the following conclusions. The criminal world, it is alleged, is made up of criminal lunatics, a few congenital criminals (probably it would be difficult to put the number too low), a considerable number of persons who have a tendency to crime which may be, and too often is, excited and confirmed by external influences, a number of persons with a less strong tendency whom one may call "occasional criminals," and a few whom we may with Ferri describe as " emotional criminals." Obviously this classification, if accepted—we must not be held to do so, however—will have considerable influence on the punishments which we are to employ to counteract crime, and, indeed, it may be said that penology is already in the melting-pot.
The most permanent result of Lombroso's work has been to suggest to the public mind that crime is largely due, .not to any deliction of the criminal, but either to an accident of birth or a deliction of society. This once admitted, the .old retributive theory of punishment becomes impossible. Trofessor Saleilles' volume in the series under consideration shows clearly how the ethical and metaphysical basis of the old theory of punishment (created by the classicists of the eighteenth century) has crumbled away, and how, both in the tnind of layman and student, the ideal of remedy has to a .great extent supplanted that of retribution. The new ideas at their strongest were apt to ignore also the deterrent function, but that, one is devoutly thankful to see, seems now sure once more of a general though slightly less unquestioning acceptance. The more sober theorists are also reasserting the importance of that view of punishment which sees in it .a protest of morality, an expression of social disapprobation. Subject to these limitations all theorists seem now to be con- verging on what is called "the individualization of punish- anent"; in other words, the theory that punishments should not iae classified a priori to fit the different classes of crime, but should in each case be adapted to the character and circum- stances of the particular offender. Professor Saleilles' volume goes exhaustively into the ethical basis of this theory and the xarious ways, in which its advocates seek to apply it: Here
n one can do no more than indicate its general scope, which includes the indeterminate Sentence, release on probation or
under' suspended sentence, and confinement in various kinds' of reformatory institutions, the best known representative of which is probably that founded by Brockway at Elmira in the United States. The system seems to be per as a reason- able one and, subject to the limitations already indicated, is probably the best ideal for which modern legisla- tion can strive. At any rate the scientists seem more or less agreed upon general principles. But more remarkable than the agreement of the scientists is the support which their conclusions receive from experience. Doctor Devon, the author of the fifth book with which this article is concerned, is a practical man, being, in fact, medical officer of the prison at Glasgow. He prides himself rather obviously on being a practical man, and his references to "the pseudo-science. of criminology" give proof that he is no mere theoriser. The strange thing is that, speaking broadly, Dr. Devon's life- long experience has led him to the same practical conclusions as those which scientific research has reached by a different path. Dr. Devon is a man of wide sympathy and keen obser- vation, and his warmth of feeling and incisiveness of mind make his book admirable reading, giving it a freshness and vigour of style rare in works of this kind. His experience has been chiefly with short-sentence criminals, and this should be borne in mind in studying his proposals. The limitation in no way impairs the value of his conclusions, for the short-term offender, with his tendency to recidivism, is the root of the whole pro. blem. To be brief, Dr. Devon decides unhesitatingly for a. purely remedial system of punishment (ho never, one may say in parenthesis, fairly faces the necessity of the deterrent func- tion) and finds all our existing attempts at remedial legislation ineffective. Imprisonment for definite terms he finds wholly bad, expensive, useless, and positively demoralizing to the offender. Reformatory institutions are, to his mind, equally unsatisfactory. He regards the criminal as an anti-social being, and finds all systems which restrict him to a life essentially different from the life in which he has failed, and to which he must return, as fundamentally vicious. The only true remedy, to his mind, is to send the offender as soon as possible back to the old life under fitting tutelage —a pro- bationary system, in fact. But here he falls foul of the methods embodied in our own Probation of Offenders Act, which puts the released prisoner under the . super- vision of an official Dr. Devon would have him confided to a family where he will be treated as an ordinary human being and properly looked after. Such a system, of course, presents innumerable difficulties, but a similar one is already in operation for dealing with persons discharged from criminal lunatic asylums, and if Dr. Devon's scheme is not likely to prove a universal panacea there are many cases to which it could with advantage be extended. But here, as in so many books of the kind, it is not the conclusions which are the most valuable part. It is Dr. Devon's broad sympathy and fresh. ness of outlook which make the book worth reading, remembering, and studying, and it should serve as an excellent introduction to the more solid works the substance of which we have already considered.
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