purpose, 160—Reparation to persons wrongly prosecuted, 161—Many criminal offences should be tried as civil offences, 162—The object of a criminal trial, 163. II. The crime and the criminal, 164—The stages of a criminal trial, 165— The evidence, 166—Anthropological evidence, 166—The utilisation of hypnotism, 168—Psychological and psycho-pathological evidence, 168—The credibility of witnesses, 168 Expert evidence, 169—An advocate of the poor, 172—The judge and his qualifications, 172— Civil and criminal judges <p xii>should be distinct functionaries, 173—The student of law should study criminals, 174—Training of police and prison officers, 174—The status of the criminal judge, 175—The authority of the judge, 176. III. The jury, 177—Origin of the jury, 178—Advantages of the jury, 179—Defects of the jury, 180—The jury as a protection to liberty, 182—The jury and criminal law, 184—Juries untrained and irresponsible, 186— Numbers fatal to wisdom, 188—Defects of judges, 193—Difference between the English and Continental jury, 194—Social evolution and the jury, 196—The jury compared to the electorate, 197—How to utilise the jury, 198. IV. Existing prison systems a failure, 201—Defects of existing penal systems, 201—The abuse of short sentences, 202—The growth of recidivism, 203—Garofalo's scheme of punishments, 204—Von Liszt's scheme of punishments, 206—The basis of a rational system of punishment, 207—The indeterminate sentence, 207—Flogging, 210—The indefinite sentence for habitual offenders, 211—Van Hamel's proposals as to sentences, 212—The liberation of prisoners on an indefinite sentence, 213—The supervision of punishment, 213—Conditional release, 215—Good conduct test in prisons, 216—Police supervision, 216— Indemnification of the victims Of crime, 217—The duty of the State towards the victims of crime, 222—Defensive measures must be adapted to the different classes of criminals, 225—Uniformity of punishment, 225—The prison staff, 227—Classification of prisoners, 227—Prison labour, 228. V. Asylums for criminal lunatics, 230—The treatment of insane criminals, 232—Crime and madness, 234—Classification of asylums for criminal lunatics, 237—The treatment of born criminals, 238—The death penalty, 239—Extension of the death penalty, 243—Inadequacy of the death penalty, 245—Imprisonment for life, 246—Transportation, 248— Labour settlements, 249—Establishments for habitual criminals, 250—Criminal heredity, 251—Incorrigible offenders, 252— Cumulative sentences, 253—Uncorrected or incorrigible criminals, 254—Cellular prisons, 256—Solitary confinement, 257—The progressive system of imprisonment, 257—The evils of cellular imprisonment, 260 —The cell does not secure separation, 262— Costliness of the cellular system, 263—Labour under the cellular system, 264—Open-air work the best for prisoners, 265—The treatment of habitual criminals, 266—The treatment of occasional <p xiii>criminals, 267—The treatment of young offenders, 268— Futility of short sentences, 268—Substitutes for short sentences, 269—Compulsory work without imprisonment, 271 —Conditional sentences, 271—Conditional sentences in Belgium, 273—Conditional sentences in the United States, 275—Objections to conditional sentences, 276—When the conditional sentence is legitimate, 282— The treatment of criminals of passion, 282—Conclusion, 284.

INTRODUCTION.

THE POSITIVE SCHOOL OF CRIMINAL LAW.

DURING the past twelve or fourteen years Italy has poured forth a stream of new ideas on the subject of crime and criminals; and only the short-sightedness of her enemies or the vanity of her flatterers can fail to recognise in this stream something more than the outcome of individual labours.

A new departure in science is a simple phenomenon of nature, determined in its origin and progress, like all such phenomena, by conditions of time and place. Attention must be drawn to these conditions at the outset, for it is only by accurately defining them that the scientific conscience of the student of sociology is developed and confirmed.

The experimental philosophy of the latter half of our century, combined with human biology and psychology, and with the natural study of human society, had already produced an intellectual atmosphere decidedly favourable to a practical inquiry into the criminal manifestations of individual and social life.<p xv> <p xvi>

To these general conditions must be added the plain and everyday contrast between the metaphysical perfection of criminal law and the progressive increase of crime, as well as the contrast between legal theories of crime and the study of the mental characteristics of a large number of criminals.

From this point onwards, nothing could be more natural than the rise of a new school, whose object was to make an experimental study of social pathology in respect of its criminal symptoms, in order to bring theories of crime and punishment into harmony with everyday facts. This is the positive school of criminal law, whereof the fundamental purpose is to study the natural genesis of criminality in the criminal, and in the physical and social conditions of his life, so as to apply the most effectual remedies to the various causes of crime.

Thus we are not concerned merely with the construction of a theory of anthropology or psychology, or a system of criminal statistics, nor merely with the setting of abstract legal theories against other theories which are still more abstract. Our task is to show that the basis of every theory concerning the self-defence of the community against evil-doers must be the observation of the individual and of society in their criminal activity. In one word, our task is to construct a criminal sociology.

For, as it seems to me, all that general sociology can do is to furnish the more ordinary and universal inferences concerning the life of communities; and upon this canvas the several sciences of sociology are delineated by the specialised observation of each <p xvii>distinct order of social facts. In this manner we may construct a political sociology, an economic sociology, a legal sociology, by studying the special laws of normal or social activity amongst human beings, after previously studying the more general laws of individual and collective existence. And thus we may construct a criminal sociology, by studying, with such an aim and by such a method, the abnormal and anti-social actions of human beings—or, in other words, by studying crime and criminals.

Neither the Romans, great exponents as they were of the civil law, nor the practical spirits of the Middle Ages, had been able to lay down a philosophic system of criminal law. It was Beccaria, influenced far more by sentiment than by scientific precision, who gave a great impetus to the doctrine of crimes and punishments by summarising the ideas and sentiments of his age.[1] Out of the various germs contained in his generous initiative there has been developed, to his well-deserved credit, the classical school of criminal law.

[1] Desjardins, in the Introduction to his ``Cahiers des <E'>tats G<e'>n<e'>raux en 1789 et la L<e'>gislation Criminelle,'' Paris, 1883, gives a good description of the state of public opinion in that age. He speaks also of the charges which were brought against the advocates of the new doctrines concerning crime, that they upset the moral and social order of things. Nowadays, charges against the experimental school are cited from these same advocates; for the revolutionary of yesterday is very often the conservative of to-day.

This school had, and still has, a practical purpose, namely, to