I.
Criminal statistics show that crime increases in the aggregate, with more or less notable oscillations from year to year, rising or falling in successive waves. Thus it is evident that the level of criminality in any one year is determined by the different conditions of the physical and social environment, combined with the hereditary tendencies and occasional impulses of the individual, in obedience to a law which I have called, in a.n.a.logy with chemical phenomena, the law of criminal saturation.
Just as in a given volume of water, at a given temperature, we find a solution of a fixed quant.i.ty of any chemical substance, not an atom more or less, so in a given social environment, in certain defined physical conditions of the individual, we find the commission of a fixed number of crimes.
Our ignorance of many physical and psychical laws and of innumerable conditions of fact, will prevent us from obtaining a precise view of this level of criminality. But none the less is it the necessary and inevitable result of a given physical and social environment. Statistics show us, indeed, that the variations of this environment are always attended by consequential and proportional variations of crime. In France, for instance (and the observation will be found to apply to every country which possesses an extended series of criminal statistics), the number of crimes against the person varies but little in sixty-two years. The same thing holds good for England and Belgium, because their special environment is also less variable, by reason that hereditary dispositions and human pa.s.sions cannot vary profoundly or frequently, except under the influence of exceptional disturbances of the weather, or of social conditions. In fact, the more serious variations in respect of crimes against the person in France have taken place either during political revolutions, or in years of excessive heat, or of exceptional abundance of meat, grain, and wine. This is ill.u.s.trated by the exceptional increase of crime from 1849 to 1852. Minor offences against the person, on the contrary, which are more occasional, a.s.saults and wounding, for example, vary in the main, as to their annual oscillations, with the abundance of the wine harvest, whilst in their oscillations from month to month they display a characteristic increase during the vintage periods, from June to December, notwithstanding the constant diminution of other offences and crimes against the person.
On the other hand, crimes against property, and still more offences against property, show wide oscillations on account of the variability of the special environment, which is almost always in a condition of unstable equilibrium, as in periods of scarcity, and of commercial, financial and industrial crises, and so forth, whilst they are subject also to the influence of the physical environment. Crimes and offences against property display extraordinary increases in the severest winter seasons, and diminutions in milder winters.
And this correspondence between the more general, powerful, and variable physical and social factors of crime, as well as its more characteristic manifestations such as thefts, wounding, and indecent a.s.saults, is so constant and so direct that, when I was studying the annual movement of criminality in France, and perceived some extraordinary oscillation in the crimes and offences, I foresaw that in the annals of the year I should find mention of an agricultural or political crisis, or an exceptional winter or summer in the records of the weather. So that with a single column of a table of criminal statistics I was able to reconstruct the historical condition of a country in its more salient features. In this way psychological experiment again confirmed the truth of the law of criminal saturation.
Not only so, but it may be added that as, in chemistry, over and above the normal saturation we find that an increased temperature of the liquid envelopes an exceptional super-saturation, so in criminal sociology, in addition to the ordinary saturation we are sometimes aware of an excess of criminal saturation, due to the exceptional conditions of the social environment.
Indeed it is to be observed not only that the main and typical criminality has a sort of reflex criminality depending upon it, but also that an increase of more serious or more frequent crimes induces a crop of resistance to and a.s.saults upon the guardians of public order, together with false witness, insults, avoidance of supervision, absconding, and the like. Certain crimes and offences also have their complementary offences, which from being consequences become in their turn the causes of new offences. Thus concealment and purchase of stolen goods increase simultaneously with theft; homicide and wounding lead to the illegal carrying of arms; adultery and abusive language to duels, and so forth.
Beyond this there are sundry kinds of excessive criminal saturations which are exceptional, and therefore transitory. Ireland and Russia present us with conspicuous examples in their political and social crimes; and similarly America, during election contests. So in France before and after December 2 1851, the harbouring of criminals, which in no other quadrennial period from 1826 to 1887 exceeds a record of fifty, rises in 1850-53 as high as 239. So during the famine of 1847, theft of grain rises in France to forty-two in a single year, whilst for half a century it barely reaches a total of seventy-five. It is notorious, again, that in years of dear provisions, or severe winters, a large number of thefts and petty offences are committed for the sole object of securing maintenance within the prison walls. And in this connection I have observed in France that other offences against property decrease during a famine, by an a.n.a.logous psychological motive, thus presenting a sort of statistical paradox. Thus, for example, I have found that as oidium and phylloxera are more effective than severe punishments in diminishing the number of a.s.saults and cases of unlawful wounding, so famine succeeds better than the strongest bars, or dogs kept loose in the prison yards, in preventing the escape of prisoners, who at such times are detained by the advantage of being supported at the public expense.
For a parallel reason in 1847, a famine year, whilst all crimes and offences against property increased in an extraordinary fashion, only the crimes of theft and breach of confidence by household servants showed a characteristic decrease, because such persons were deterred by the fear of being dismissed by their employers during the time of distress. The figures are as follows:-
FRANCE (a.s.sizes). 1844. 1845. 1846. 1847.
Crimes against property ... 3,767 3,396 3,581 4,235 Breach of confidence by household servants ... ... 136 128 168 104 Thefts by the same ... ... 1,001 874 924 896 M. Chaussinand adds, by way of confirmation of my statement that during economic crises, such as famine and high prices of grain, the number of cases of escape from justice also decreases, FOR "thieves and tramps prefer arrest, in order to escape from the misery which afflicts them outside the prison walls."
Two fundamental conclusions of criminal sociology may be drawn from this law of criminal saturation.
The first is that it is incorrect to a.s.sert a mechanical regularity of crime, which from Quetelet"s time has been much exaggerated. There has been a too literal insistance on his famous declaration that "the budget of crime is an annual taxation paid with more preciseness than any other"; and that it is possible to calculate beforehand how many homicides, poisoners, and forgers we shall have, because "crimes are generated every year in the same number, with the same punishments, in the same proportions." And one constantly meets with this echo of the statisticians, that "from year to year crimes against the person vary at the most by one in twenty-five, and those against property by one in fifty"; or, again, that there is "a law of limitation in crime, which does not vary by more than one in ten."
This opinion, originated by Quetelet and other statisticians after an inquiry confined to the more serious crimes, and to a very short succession of years, has already been refuted, in part by Maury and Rhenisch, and more plainly by Aberdare, Mayr, Messedaglia and Minzloff.
In fact, if the level of criminality is of necessity determined by the physical and social environment, how could it remain constant in spite of the continual variations, sometimes very considerable, of this same environment? That which does remain fixed is the proportion between a given environment and the number of crimes: and this is precisely the law of criminal saturation. But the statistics of criminality will never be constant to one rule from year to year. There will be a dynamical but not a statical regularity.
Thus the element of fixity in criminal sociology consists in a.s.serting, not the fatality or predestination of human actions, including crimes, but only their necessary dependence upon their natural causes, and therewith the possibility of modifying effects by modifying the activity of these causes. And, indeed, even Quetelet himself recognised this when he said, "If we change the social order we shall see an immediate change in the facts which have been so constantly reproduced. Statisticians will then have to consider whether the changes have been useful or injurious. These studies therefore show how important is the mission of the legislator, and how responsible he is in his own sphere for all the phenomena of the social order."
The second consequence of the law of criminal saturation, one of great theoretical importance, is that the penalties. .h.i.therto regarded, save for a few platonic declarations, as the best remedies for crime, are less effectual than they are supposed to be. For crimes and offences increase and diminish by a combination of other causes, which are far from being identical with the punishments lightly written out by legislators and awarded by judges.
History affords us various impressive examples.
The Roman Empire, when society had fallen into extreme corruption, recalling many symptoms of our own epoch, vainly promulgated laws which visited celibacy, adultery, and incest-"venus prodigiosa"-with "the vengeance of the sword and punishments of the utmost severity." Dio Ca.s.sius ("Hist. Rom.," lxxvi. 16) says that in the city of Rome alone, after the law of Septimus Severus, there were three thousand charges of adultery. But the stringent laws against these crimes continued to the days of Justinian, which shows that the crimes had not been checked; and, as Gibbon says ("Decline and Fall," ch. 44), the Scatinian law against "venus nefanda" had fallen into abeyance through lapse of time and the mult.i.tude of offenders. Yet we see in our own days, as in France, that there are some who would oppose celibacy with no other remedy than a law pa.s.sed for the purpose.
Since mediaeval times the increasing gentleness of manners has caused a diminution of crimes of blood, once so numerous that there was need of sundry "truces" and "peaces," notwithstanding the harsh penalties of previous centuries. And Du Boys called Cettes simple because, after giving a table of shocking punishments in the Germany of his day (the fifteenth century), he marvelled that all these pains and torments had not prevented the increase of crimes.
Imperial Rome deluded herself with the idea that she could stamp out Christianity with punishments and tortures, which, however, only seemed to fan the flame. In the same way Catholic Europe hoped to extinguish Protestantism by means of vindictive persecution, and only produced the opposite effect, as always happens. If the Reformed faith does not strike root in Italy, France, and Spain, that must be explained by psychological reasons proper to those nations, independently of the stake and of ma.s.sacres, for it did not strike root even when religious belief was liberated from its fetters. This does not prevent all governments in every land from continuing to believe that, in order to arrest the spread of certain political or social doctrines, there is nothing better than to pa.s.s exceptional penal laws, forgetting that, with ideas and prejudices just as with steam, compression increases the expansive force.
Popular education has swept away the so-called crimes of magic and witchcraft, though they had withstood the most savage punishments of antiquity and mediaeval times.
Blasphemy, in spite of the slitting of the nose, tongue, and lips, enacted by the penal laws, and continued in France from Louis XI. to Louis XV., was very common in the middle ages, being (like witchcraft, trances, and self-immurement) a pathological or abnormal manifestation of religious emotion, which in those times had an extraordinary development. And the habit of blasphemy diminished under the psychological and social evolution of our own days, precisely when it ceased to be punished. Or, rather, it continued to this day, as in Tuscany, where the Tuscan penal code (Art. 136), which survived until December 31, 1889, still punished it with five years" imprisonment. The illusion as to the efficacy of punishment is so deeply rooted that a proposal was made in the Senate, in 1875, to include this penalty in the new Italian penal code. And at Murcia, in Spain, trials for blasphemy have lately been re-established.
Mittermaier observed that, if in England and Scotland there were far fewer cases of false witness, perjury, and resistance to authority than in Ireland and on the Continent, this must be due in great measure to national character, which is one of the hereditary elements of normal as well as of abnormal and criminal life.
Thus even apart from statistics we can satisfy ourselves that crimes and punishments belong to two different spheres; but when statistics support the teaching of history, no doubt can remain as to the very slight (I had almost said the absence of any) deterrent effect of punishments upon crime.
We may indeed derive a telling proof from statistical records, by referring to the progress of repression in France, over a period of sixty years, as I have already done in my "Studies" previously quoted.
When we speak of the repression of crime, we must first of all distinguish between that which is due to the general character of penal legislation, more or less severe, and that which is secured by the administration by the judges of the law as it is. Now, so far as legislation is concerned, the growth of crime in France certainly cannot be attributed to the relaxation of punishment. The legislative reforms which have taken place, especially in 1832 and 1863, on the general revision of the penal code, modified punishments to some extent, but with the definite purpose and result, as shown by the same official records of criminal statistics, of strengthening the repressive power of the law by providing for the application of less aggravated punishments. The repugnance of juries and judges against excessive punishments, and their preference for acquittal, is, indeed, a psychological law. Moreover, it is well known that if there is in Europe a penal code less mild than any of the rest, it is that of France, which is the oldest of those now in force, and still retains much of the military rigour of its origin. And it must be added that for certain crimes, as for rapes and indecent a.s.saults, which are nevertheless constantly increasing in France, the punishments have been increased by several successive enactments. The same is true of extortion by threats of exposure, which occurs more and more frequently, as M. Joly also observes, in spite of the severe punishments of the law of 1863.
The question, therefore, is reduced to judicial repression, the progress whereof must be observed in the past half-century, for it has evidently the greatest influence upon crime. Laws, in fact, have no real operation if they are not applied more or less rigorously; for in the social strata which contribute most to criminality the laws are known only by their practical application, which is also the only truly defensive function, carrying with it a special preventive of the repet.i.tion of the crime by the person condemned.
Thus the arguments of jurists and legislators have not much value for the criminal sociologist when they are based solely on the psychological illusion that the dangerous cla.s.ses trouble themselves about the shaping of a penal code, as the more instructed and less numerous cla.s.ses might well do. The dangerous cla.s.ses attend to the sentences of the judges, and still more to the execution of those sentences, than to the articles of a code. In this connection I cannot agree with the forecast of Garofalo as to the perilous effect of the abolition of capital punishment in Italy on the imagination of the people; for he was well aware that, though it is defined in various articles of the old code, and in about sixty sentences every year, the punishment of death has not been carried out, which is the essential point, for the last fifteen years.
The elements which determine the greater or less severity of judicial repression are of two kinds:-
1. The ratio of persons acquitted to the total number of prisoners put on their trial.
2. The ratio of the severest punishments to the total number of prisoners condemned.
Certainly the proportion of acquittals ought not to indicate a difference in the severity of repression as such, for condemnation or acquittal ought to point merely to the certainty or otherwise of guilt, the sufficiency or insufficiency of the evidence. But, as a matter of fact, the proportional increase of convictions does partly represent greater severity on the part of the judges, and still more of the juries, who display it by attaching weight to somewhat unconvincing evidence, or in too readily admitting circ.u.mstances which tend to aggravate the offence. This is confirmed also by the rarity of acquittals in cases of contumacy.
Of these two factors the former is certainly the more important, for it is a psychological law that man, in regard to punishment as to any other kind of suffering, is more affected by the certainty than by the gravity of the infliction. And it is to the credit of criminal theorists of the cla.s.sical school that they have steadily maintained that a mild yet certain punishment is more effectual than one which, being severe in itself, holds out a stronger hope of escaping it. Nevertheless it is a fact that they have carried the theory too far, by seeking to obtain excessive mitigations and abbreviations of punishment, without exerting themselves to secure certainty by reforms of procedure and police administration.
The diminution of the rate of acquittal is evident and continuous, both at the a.s.sizes and in the Tribunals, except for the last quadrennial period. This may of course indicate a more careful management of the trials by the judges; but it certainly shows an undoubted tendency towards increased judicial severity, which, meanwhile, has not arrested the growth of crime.
PERCENTAGE OF ACQUITTALS IN FRANCE. Tried in a.s.size Courts. Tribunals. Total 1826-30 ... ... 39 ... ... 31 ... ... 32 1831-5 ... ... 42 ... ... 28 ... ... 30 1836-40 ... ... 35 ... ... 22 ... ... 23 1841-5 ... ... 32 ... ... 18 ... ... 19 1846-50 ... ... 36 ... ... 16 ... ... 17 1851-5 ... ... 28 ... ... 12 ... ... 13 1856-60 ... ... 24 ... ... 10 ... ... 7 1861-5 ... ... 24 ... ... 9 ... ... 6 1866-9 ... ... 23 ... ... 17 ... ... 8 1872-6 ... ... 20 ... ... 6 ... ... 6 1877-81 ... ... 23 ... ... 5 ... ... 6 1882-6 ... ... 27 ... ... 6 ... ... 6
PERCENTAGE OF ACQUITTALS IN ENGLAND. Criminal Proceedings. Summary Proceedings. 1858-62 ... ... ... 25 ... ... ... 34 1863-7 ... ... ... 24 ... ... ... 31 1868-72 ... ... ... 26 ... ... ... 24 1873-7 ... ... ... 25 ... ... ... 21 1878-82 ... ... ... 24 ... ... ... 21 1883-7 ... ... ... 22 ... ... ... 20
Here also it appears that the growth of crime in England, though less than in France, is not due to the weakening of judicial severity through the greater number of acquittals. The number has, in fact, constantly diminished, especially in summary proceedings, which is just where the greatest increase of crime is manifest.
Pa.s.sing now to the other factor of judicial repression, that is to the percentage of persons sentenced to graver kinds of punishment, we have to take into account, amongst a.s.size cases in France, the prisoners sentenced to death, penal servitude, and solitary imprisonment, excluding such as are sentenced to correctional punishment (simple imprisonment and fines) as well as young prisoners sent to reformatories; and in regard to the Tribunals, we must take the percentages of those who are condemned to imprisonment, which is the most serious punishment, the remainder being fined, or handed over to their parents, or sent to reformatories.
Condemned at a.s.sizes Condemned FRANCE. -------------- by Tribunals To death. To penal servitude. to imprisonment.
1826-30 ... ... 2.5 ... ... 58 ... ... ... 61
1831-5 ... ... 1.5 ... ... 42 ... ... ... 65
1836-40 ... ... .7 ... ... 37 ... ... ... 65
1841-5 ... ... 1 ... ... 40 ... ... ... 61
1845-50 ... ... 1 ... ... 39 ... ... ... 62
1851-5 ... ... 1.1 ... ... 48 ... ... ... 61
1856-60 ... ... 1 ... ... 49 ... ... ... 61
1861-5 ... ... .6 ... ... 48 ... ... ... 64
1866-9 ... ... .5 ... ... 47 ... ... ... 68
1872-6 ... ... .7 ... ... 49 ... ... ... 66