but feels the ideal of his time stirring within him and gives up his life to it. He has written three lines of a simple nudity that reveals much, in which he says: "A man is responsible for the crimes which he commits; if, in committing a crime, his will is half free, he is responsible to the extent of one-half; if one-third, he is responsible one-third." There you have the uncompromising and absolute classic theorem. But in the penal code of 1890, you will find that the famous article 45 intends to base the responsibility for a crime on the simple will, to the exclusion of the free will. However, the Italian judge has continued to base the exercise of penal justice on the supposed existence of the free will, and pretends not to know that the number of scientists denying the free will is growing. Now, how is it possible that so terrible an office as that of sentencing criminals retains its stability or vacillates, according to whether the first who denies the existence of a free will deprives this function of its foundation?

Truly, it is said that this question has been too difficult for the new Italian penal code. And, for this reason, it was thought best to base the responsibility for a crime on the idea that a man is guilty simply for the reason that he wanted to commit the crime; and that he is not responsible if he did not want to commit it. But this is an eclectic way out of the difficulty, which settles nothing, for in the same code we have the rule that involuntary criminals are also punished, so that involuntary killing and wounding are punished with imprisonment the same as voluntary deeds of this kind. We have heard it said in such cases that the result may not have been intended, but the action bringing it about was. If a hunter shoots through a hedge and kills or wounds a person, he did not intend to kill, and yet he is held responsible because his first act, the shooting, was voluntary.

That statement applies to involuntary crimes, which are committed by some positive act. But what about involuntary crimes of omission? In a railway station, where the movements of trains represent the daily whirl of traffic in men, things, and ideas, every switch is a delicate instrument which may cause a derailment. The railway management places a switchman on duty at this delicate post. But in a moment of fatigue, or because he had to work inhumanly long hours of work, which exhausted all his nervous elasticity, or for other reasons, the switchman forgets to set the switch and causes a railroad accident, in which people are killed and wounded. Can it be said that he intended the first act? Assuredly not, for he did not intend anything and did not do anything. The hunter who fires a shot has at least had the intention of shooting. But the switchman did not want to forget (for in that case he would be indirectly to blame); he has simply forgotten from sheer fatigue to do his duty; he has had no intention whatever, and yet you hold him responsible in spite of all that! The fundamental logic of your reasoning in this case corresponds to the logic of the things. Does it not happen every day in the administration of justice that the judges forget about the neutral expedient of the legislator who devised this relative progress of the penal code, which pretends to base the responsibility of a man on the neutral and naive criterion of a will without freedom of will? Do they not follow their old mental habits in the administration of justice and apply the obsolete criterion of the free will, which the legislator thought fit to abandon? We see, then, as a result of this imperfect and insincere innovation in penal legislation this flagrant contradiction, that the magistrates assume the existence of a free will, while the legislator has decided that it shall not be assumed. Now, in science as well as in legislation, we should follow a direct and logical line, such as that of the classic school or the positive school of criminology. But whoever thinks he has solved a problem when he gives us a solution which is neither fish nor fowl, comes to the most absurd and iniquitous conclusions. You see what happens every day. If to-morrow some beastly and incomprehensible crime is committed, the conscience of the judge is troubled by this question: Was the person who committed this crime morally free to act or not? He may also invoke the help of legislation, and he may take refuge in article 46,[A] or in that compromise of article 47,[B] which admits a responsibility of one-half or one-third, and he would decide on a penalty of one-half or one-third.

All this may take place in the case of a grave and strange crime. And on the other hand, go to the municipal courts or to the police courts, where the magic lantern of justice throws its rays upon the nameless human beings who have stolen a bundle of wood in a hard winter, or who have slapped some one in the face during a brawl in a saloon. And if they should find a defending lawyer who would demand the appointment of a medical expert, watch the reception he would get from the judge. When justice is surprised by a beastly and strange crime, it feels the entire foundation of its premises shaking, it halts for a moment, it calls in the help of legal medicine, and reflects before it sentences. But in the case of those poor nameless creatures, justice does not stop to consider whether that microbe in the criminal world who steals under the influence of hereditary or acquired degeneration, or in the delirium of chronic hunger, is not worthy of more pity. It rather replies with a mephistophelian grin when he begs for a humane understanding of his case.

[A] Article 46: "A person is not subject to punishment, if at the moment of his deed he was in a mental condition which deprived him of consciousness or of the freedom of action. But if the judge considers it dangerous to acquit the prisoner, he has to transfer him to the care of the proper authorities, who will take the necessary precautions."

[B] Article 47: "If the mental condition mentioned in the foregoing article was such as to considerably decrease the responsibility, without eliminating it entirely, the penalty fixed upon the crime committed is reduced according to the following rules:

"I. In place of penitentiary, imprisonment for not less than six years.

"II. In place of the permanent loss of civic rights, a loss of these rights for a stipulated time.

"III. Whenever it is a question of a penalty of more than twelve years, it is reduced to from three to ten years; if of more than six years, but not more than twelve, it is reduced to from one to five years; in other cases, the reduction is to be one-half of the ordinary penalty.

"IV. A fine is reduced to one-half.

"V. If the penalty would be a restriction of personal liberty, the judge may order the prisoner to a workhouse, until the proper authorities object, when the remainder of the sentence is carried out in the usual manner."

It is true that there is now and then in those halls of justice, which remain all too frequently closed to the living wave of public sentiment, some more intelligent and serene judge who is touched by this painful understanding of the actual human life. Then he may, under the illogical conditions of penal justice, with its compromise between the exactness of the classic and that of the positive school of criminology, seek for some expedient which may restore him to equanimity.

In 1832, France introduced a penal innovation, which seemed to represent an advance on the field of justice, but which is in reality a denial of justice: The expedient of extenuating circumstances. The judge does not ask for the advice of the court physician in the case of some forlorn criminal, but condemns him