Part 1 (1/2)

The Positive School of Criminology.

by Enrico Ferri.

I.

My Friends:

When, in the turmoil of my daily occupation, I received an invitation, several months ago, from several hundred students of this famous university, to give them a brief summary, in short special lectures, of the princ.i.p.al and fundamental conclusions of criminal sociology, I gladly accepted, because this invitation fell in with two ideals of mine. These two ideals are stirring my heart and are the secret of my life. In the first place, this invitation chimed with the ideal of my personal life, namely, to diffuse and propagate among my brothers the scientific ideas, which my brain has acc.u.mulated, not through any merit of mine, but thanks to the lucky prize inherited from my mother in the lottery of life. And the second ideal which this invitation called up before my mind's vision was this: The ideal of young people of Italy, united in morals and intellectual pursuits, feeling in their social lives the glow of a great aim. It would matter little whether this aim would agree with my own ideas or be opposed to them, so long as it should be an ideal which would lift the aspirations of the young people out of the fatal grasp of egoistic interests. Of course, we positivists know very well, that the material requirements of life shape and determine also the moral and intellectual aims of human consciousness. But positive science declares the following to be the indispensable requirement for the regeneration of human ideals: Without an ideal, neither an individual nor a collectivity can live, without it humanity is dead or dying. For it is the fire of an ideal which renders the life of each one of us possible, useful and fertile. And only by its help can each one of us, in the more or less short course of his or her existence, leave behind traces for the benefit of fellow-beings. The invitation extended to me proves that the students of Naples believe in the inspiring existence of such an ideal of science, and are anxious to learn more about ideas, with which the entire world of the present day is occupied, and whose life-giving breath enters even through the windows of the dry courtrooms, when their doors are closed against it.

Let us now speak of this new science, which has become known in Italy by the name of the Positive School of Criminology. This science, the same as every other phenomenon of scientific evolution, cannot be shortsightedly or conceitedly attributed to the arbitrary initiative of this or that thinker, this or that scientist. We must rather regard it as a natural product, a necessary phenomenon, in the development of that sad and somber department of science which deals with the disease of crime. It is this plague of crime which forms such a gloomy and painful contrast with the splendor of present-day civilization. The 19th century has won a great victory over mortality and infectious diseases by means of the masterful progress of physiology and natural science. But while contagious diseases have gradually diminished, we see on the other hand that moral diseases are growing more numerous in our so-called civilization. While typhoid fever, smallpox, cholera and diphtheria retreated before the remedies which enlightened science applied by means of the experimental method, removing their concrete causes, we see on the other hand that insanity, suicide and crime, that painful trinity, are growing apace. And this makes it very evident that the science which is princ.i.p.ally, if not exclusively, engaged in studying these phenomena of social disease, should feel the necessity of finding a more exact diagnosis of these moral diseases of society, in order to arrive at some effective and more humane remedy, which should more victoriously combat this somber trinity of insanity, suicide and crime.

The science of positive criminology arose in the last quarter of the 19th century, as a result of this strange contrast, which would be inexplicable, if we could not discover historical and scientific reasons for its existence. And it is indeed a strange contrast that Italy should have arrived at a perfect theoretical development of a cla.s.sical school of criminology, while there persists, on the other hand, the disgraceful condition that criminality a.s.sumes dimensions never before observed in this country, so that the science of criminology cannot stem the tide of crime in high and low circles. It is for this reason, that the positive school of criminology arises out of the very nature of things, the same as every other line of science. It is based on the conditions of our daily life. It would indeed be conceited on our part to claim that we, who are the originators of this new science and its new conclusions, deserve alone the credit for its existence. The brain of the scientist is rather a sort of electrical acc.u.mulator, which feels and a.s.similates the vibrations and heart-beats of life, its splendor and its shame, and derives therefrom the conviction that it must of necessity provide for definite social wants. And on the other hand, it would be an evidence of intellectual short-sightedness on the part of the positivist man of science, if he did not recognize the historical accomplishments, which his predecessors on the field of science have left behind as indelible traces of their struggle against the unknown in that brilliant and irksome domain. For this reason, the adherents of the positive school of criminology feel the most sincere reverence for the cla.s.sic school of criminology. And I am glad today, in accepting the invitation of the students of Naples, to say, that this is another reason why their invitation was welcome to me. It is now 16 years since I gave in this same hall a lecture on positive criminology, which was then in its initial stages. It was in 1885, when I had the opportunity to outline the first principles of the positive school of criminology, at the invitation of other students, who preceded you on the periodic waves of the intellectual generations. And the renewal of this opportunity gave me so much moral satisfaction that, I could not under any circ.u.mstances decline your invitation. Then too, the Neapolitan Atheneum has maintained the reputation of the Italian mind in the 19th century, also in that science which even foreign scientists admit to be our specialty, namely the science of criminology. In fact, aside from the two terrible books of the Digest, and from the practical criminologists of the Middle Ages who continued the study of criminality, the modern world opened a glorious page in the progress of criminal science with the modest little book of Cesare Beccaria. This progress leads from Cesare Beccaria, by way of Francesco Carrara, to Enrico Pessina.

Enrico Pessina alone remains of the two giants who concluded the cycle of cla.s.sic school of criminology. In a lucid moment of his scientific consciousness, which soon reverted to the old abstract and metaphysical theories, he announced in an introductory statement in 1879, that criminal justice would have to rejuvenate itself in the pure bath of the natural sciences and subst.i.tute in place of abstraction the living and concrete study of facts. Naturally every scientist has his function and historical significance; and we cannot expect that a brain which has arrived at the end of its career should turn towards a new direction. At any rate, it is a significant fact that this most renowned representative of the cla.s.sic school of criminology should have pointed out this need of his special science in this same university of Naples, one year after the inauguration of the positive school of criminology, that he should have looked forward to a time when the study of natural and positive facts would set to rights the old juridical abstractions. And there is still another precedent in the history of this university, which makes scientific propaganda at this place very agreeable for a positivist. It is that six years before that introductory statement by Pessina, Giovanni Bovio gave lectures at this university, which he published later on under the t.i.tle of ”A Critical Study of Criminal Law.” Giovanni Bovio performed in this monograph the function of a critic, but the historical time of his thought, prevented him from taking part in the construction of a new science. However, he prepared the ground for new ideas, by pointing out all the rifts and weaknesses of the old building. Bovio maintained that which Gioberti, Ellero, Conforti, Tissol had already maintained, namely that it is impossible to solve the problem which is still the theoretical foundation of the cla.s.sic school of criminology, the problem of the relation between punishment and crime. No man, no scientist, no legislator, no judge, has ever been able to indicate any absolute standard, which would enable us to say that equity demands a definite punishment for a definite crime. We can find some opportunistic expedient, but not a solution of the problem. Of course, if we could decide which is the gravest crime, then we could also decide on the heaviest sentence and formulate a descending scale which would establish the relative fitting proportions between crime and punishment. If it is agreed that patricide is the gravest crime, we meet out the heaviest sentence, death or imprisonment for life, and then we can agree on a descending scale of crime and on a parallel scale of punishments. But the problem begins right with the first stone of the structure, not with the succeeding steps. Which is the greatest penalty proportional to the crime of patricide? Neither science, nor legislation, nor moral consciousness, can offer an absolute standard. Some say: The greatest penalty is death. Others say: No, imprisonment for life. Still others say: Neither death, nor imprisonment for life, but only imprisonment for a time. And if imprisonment for a time is to be the highest penalty, how many years shall it last -thirty, or twenty-five, or ten?

No man can set up any absolute standard in this matter. Giovanni Bovio thus arrived at the conclusion that this internal contradiction in the science of criminology was the inevitable fate of human justice, and that this justice, struggling in the grasp of this internal contradiction, must turn to the civil law and ask for help in its weakness. The same thought had already been illumined by a ray from the bright mind of Filangieri, who died all too soon. And we can derive from this fact the historical rule that the most barbarian conditions of humanity show a prevalence of a criminal code which punishes without healing; and that the gradual progress of civilization will give rise to the opposite conception of healing without punis.h.i.+ng.

Thus it happens that this university of Naples, in which the ill.u.s.trious representative of the cla.s.sic school of criminology realized the necessity of its regeneration, and in which Bovio foresaw its sterility, has younger teachers now who keep alive the fire of the positivist tendency in criminal science, such as Penta, Zuccarelli, and others, whom you know. Nevertheless I feel that this faculty of jurisprudence still lacks oxygen in the study of criminal law, because its thought is still influenced by the overwhelming authority of the name of Enrico Pessina. And it is easy to understand that there, where the majestic tree spreads out its branches towards the blue vault, the young plant feels deprived of light and air, while it might have grown strong and beautiful in another place.

The positive school of criminology, then, was born in our own Italy through the singular attraction of the Italian mind toward the study of criminology; and its birth is also due to the peculiar condition our country with its great and strange contrast between the theoretical doctrines and the painful fact of an ever increasing criminality.

The positive school of criminology was inaugurate by the work of Cesare Lombroso, in 1872. From 1872 to 1876 he opened a new way for the study of criminality by demonstrating in his own person that we must first understand the criminal who offends, before we can study and understand his crime. Lombroso studied the prisoners in the various penitentiaries of Italy from the point of view of anthropology. And he compiled his studies in the reports of the Lombardian Inst.i.tute of Science and Literature, and published them later together in his work ”Criminal Man.” The first edition of this work (1876) remained almost unnoticed, either because its scientific material was meager, or because Cesare Lombroso had not yet drawn any general scientific conclusions, which could have attracted the attention of the world of science and law. But simultaneously with its second edition (1878) there appeared two monographs, which const.i.tuted the embryo of the new school, supplementing the anthropological studies of Lombroso with conclusions and systematizations from the point of view of sociology and law. Raffaele Garofalo published in the Neapolitan Journal of Philosophy and Literature an essay on criminality, in which he declared that the dangerousness of the criminal was the criterion by which society should measure the function of its defense against the disease of crime. And in the same year, 1878, I took occasion to publish a monograph on the denial of free will and personal responsibility, in which I declared frankly that from now on the science of crime and punishment must look for the fundamental facts of a science of social defense against crime in the human and social life itself. The simultaneous publication of these three monographs caused a stir. The teachers of cla.s.sic criminology, who had taken kindly to the recommendations of Pessina and Ellero, urging them to study the natural sources of crime, met the new ideas with contempt, when the new methods made a determined and radical departure, and became not only the critics, but the zealous opponents of the new theories. And this is easy to understand. For the struggle for existence is an irresistible law of nature, as well for the thousands of germs scattered to the winds by the oak, as for the ideas which grow in the brain of man. But persecutions, calumnies, criticisms, and opposition are powerless against an idea, if it carries within itself the germ of truth. Moreover, we should look upon this phenomenon of a repugnance in the average intellect (whether of the ordinary man or the scientist) for all new ideas as a natural function. For when the brain of some man has felt the light of a new idea, a sneering criticism serves us a touchstone for it. If the idea is wrong, it will fall by the wayside; if it is right, then criticisms, opposition and persecution will cull the golden kernel from the unsightly sh.e.l.l, and the idea will march victoriously over everything and everybody. It is so in all walks of life-in art, in politics, in science. Every new idea will rouse against itself naturally and inevitably the opposition of the accustomed thoughts. This is so true, that when Cesare Beccaria opened the great historic cycle of the cla.s.sic school of criminology, he was a.s.saulted by the critics of his time with the same indictments which were brought against us a century later.

When Cesare Beccaria printed his book on crime and penalties in 1774 under a false date and place of publication, reflecting the aspirations which gave rise to the impending hurricane of the French revolution; when he hurled himself against all that was barbarian in the mediaeval laws and set loose a storm of enthusiasm among the encyclopedists, and even some of the members of government, in France, he was met by a wave of opposition, calumny and accusation on the part of the majority of jurists, judges and lights of philosophy. The abbi Jachinci published four volumes against Beccaria, calling him the destroyer of justice and morality, simply because he had combatted the tortures and the death penalty.

The tortures, which we incorrectly ascribe to the mental brutality of the judges of those times, were but a logical consequence of the contemporaneous theories. It was felt that in order to condemn a man, one must have the certainty of his guilty, and it was said that the best means of obtaining tins certainty, the queen of proofs, was the confession of the criminal. And if the criminal denied his guilt, it was necessary to have recourse to torture, in order to force him to a confession which he withheld from fear of the penalty. The torture soothed, so to say, the conscience of the judge, who was free to condemn as soon as he had obtained a confession. Cesare Beccaria rose with others against the torture. Thereupon the judges and jurists protested that penal justice would be impossible, because it could not get any information, since a man suspected of a crime would not confess his guilt voluntarily. Hence they accused Beccaria of being the protector of robbers and murderers, because he wanted to abolish the only means of compelling them to a confession, the torture. But Cesare Beccaria had on his side the magic power of truth. He was truly the electric acc.u.mulator of his time, who gathered from its atmosphere the presage of the coming revolution, the stirring of the human conscience. You can find a similar ill.u.s.tration in the works of Daquin in Savoy, of Pinel in France, and of Hach Take in England, who strove to bring about a revolution in the treatment of the insane. This episode interests us especially, because it is a perfect ill.u.s.tration of the way traveled by the positive school of criminology. The insane were likewise considered to blame for their insanity. At the dawn of the 19th century, the physician Hernroth still wrote that insanity was a moral sin of the insane, because ”no one becomes insane, unless he forsakes the straight path of virtue and of the fear of the Lord.”

And on this a.s.sumption the insane were locked up in horrible dungeons, loaded down with chains, tortured and beaten, for lo! their insanity was their own fault.

At that period, Pinel advanced the revolutionary idea that insanity was not a sin, but a disease like all other diseases. This idea is now a commonplace, but in his time it revolutionized the world. It seemed as though this innovation inaugurated by Pinel would overthrow the world and the foundations of society. Well, two years before the storming of the Bastile Pinel walked into the sanitarium of the Salpetriere and committed the brave act of freeing the insane of the chains that weighed them down. He demonstrated in practice that the insane, when freed of their chains, became quieter, instead of creating wild disorder and destruction. This great revolution of Pinel, Chiarugi, and others, changed the att.i.tude of the public mind toward the insane. While formerly insanity had been regarded as a moral sin, the public conscience, thanks to the enlightening work of science, henceforth had to adapt itself to the truth that insanity is a disease like all others, that a man does not become insane because he wants to, but that he becomes insane through hereditary transmission and the influence of the environment in which he lives, being predisposed toward insanity and becoming insane under the pressure of circ.u.mstances.

The positive school of criminology accomplished the same revolution in the views concerning the treatment of criminals that the above named men of science accomplished for the treatment of the insane. The general opinion of cla.s.sic criminalists and of the people at large is that crime involves a moral guilt, because it is due to the free will of the individual who leaves the path of virtue and chooses the path of crime, and therefore it must be suppressed by meeting it with a proportionate quant.i.ty of punishment. This is to this day the current conception of crime. And the illusion of a free human will (the only miraculous factor in the eternal ocean of cause and effect) leads to the a.s.sumption that one can choose freely between virtue and vice. How can you still believe in the existence of a free will, when modern psychology armed with all the instruments of positive modern research, denies that there is any free will and demonstrates that every act of a human being is the result of an interaction between the personality and the environment of man?

And how is it possible to cling to that obsolete idea of moral guilt, according to which every individual is supposed to have the free choice to abandon virtue and give himself up to crime? The positive school of criminology maintains, on the contrary, that it is not the criminal who wills; in order to be a criminal it is rather necessary that the individual should find himself permanently or transitorily in such personal, physical and moral conditions, and live in such an environment, which become for him a chain of cause and effect, externally and internally, that disposes him toward crime. This is our conclusion, which I antic.i.p.ate, and it const.i.tutes the vastly different and opposite method, which the positive school of criminology employs as compared to the leading principle of the cla.s.sic school of criminal science.

In this method, this essential principle of the positive school of criminology, you will find another reason for the seemingly slow advance of this school. That is very natural. If you consider the great reform carried by the ideas of Cesare Beccaria into the criminal justice of the Middle Age, you will see that the great cla.s.sic school represents but a small step forward, because it leaves the penal justice on the same theoretical and practical basis which it had in the Middle Age and in cla.s.sic antiquity, that is to say, based on the idea of a moral responsibility of the individual. For Beccaria, for Carrara, for their predecessors, this idea is no more nor less than that mentioned in books 47 and 48 of the Digest: ”The criminal is liable to punishment to the extent that he is morally guilty of the crime he has committed.” The entire cla.s.sic school is, therefore, nothing but a series of reforms. Capital punishment has been abolished in some countries, likewise torture, confiscation, corporal punishment. But nevertheless the immense scientific movement of the cla.s.sic school has remained a mere reform.

It has continued in the 19th century to look upon crime in the same way that the Middle Age did: ”Whoever commits murder or theft, is alone the absolute arbiter to decide whether he wants to commit the crime or not.” This remains the foundation of the cla.s.sic school of criminology. This explains why it could travel on its way more rapidly than the positive school of criminology. And yet, it took half a century from the time of Beccaria, before the penal codes showed signs of the reformatory influence of the cla.s.sic school of criminology. So that it has also taken quite a long time to establish it so well that it became accepted by general consent, as it is today. The positive school of criminology was born in 1878, and although it does not stand for a mere reform of the methods of criminal justice, but for a complete and fundamental transformation of criminal justice itself, it has already gone quite a distance and made considerable conquests which begin to show in our country. It is a fact that the penal code now in force in this country represents a compromise, so far as the theory of personal responsibility is concerned, between the old theory of free will and the conclusions of the positive school which denies this free will.

You can find an ill.u.s.tration of this in the eloquent contortions of phantastic logic in the essays on the criminal code written by a great advocate of the cla.s.sic school of criminology, Mario Pagano, this admirable type of a scientist and patriot, who does not lock himself up in the quiet egoism of his study, 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 cla.s.sic 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? a.s.suredly 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 a.s.sume the existence of a free will, while the legislator has decided that it shall not be a.s.sumed. Now, in science as well as in legislation, we should follow a direct and logical line, such as that of the cla.s.sic 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 munic.i.p.al 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.”