THE NEW CRIMINOLOGY 855 



and simple. They all proceeded upon the principle subsequently 

 promulgated by the French Revolutionary Assembly, in 1791: 

 " Penalties should be proportioned to the crimes for which they are 

 inflicted." They prescribed definite and invariable penalties for 

 specific offenses. The history of codes, following the general course 

 of their successive evolution, is characterized by a gradual increase in 

 the number of punishable offenses, and a tendency to diminution 

 in the number of distinct varieties of legal punishment, culminating 

 in the substitution, for most of them, of some form and duration of 

 simple imprisonment. Imprisonment is, in the United States, 

 practically the only penalty commonly inflicted. We retain the 

 death penalty, it is true, but it tends to fall into disuse. We authorize 

 the imposition of fines, but they may be commuted into terms of 

 imprisonment at the pleasure of the convict. There is but one state 

 - and that the least of all the states - - in which the pillory and the 

 whipping-post may still be found. But imprisonment as a penalty 

 for crime is a historical novelty. 1 When it was recognized in France, 

 little more than a century ago, the code itself prescribed definite 

 terms of imprisonment. Twenty years later the French courts were 

 authorized to determine the duration of individual sentences within 

 certain maximum and minimum limits. The experience of France 

 in this regard is typical of universal experience, and the growing 

 tendency in this direction might be illustrated, did time permit, by 

 references to the history of American legislation. The amendments 

 made to all codes, both penal and judicial, are the result of dissatis- 

 faction with their practical operation. They are a confession that 

 the equitable apportionment of penalty to crime is not the easy 

 problem of solution that the Revolutionary Assembly imagined it 

 to be. 



Through this entire process of change the subdominant note has 

 been the gradual amelioration of penalty, or the softening of manners 

 with the lapse of time. 2 If any one lesson has been driven home to 

 the political consciousness of legislators and of judges, it is that 

 brutal and needless severity in dealing with crime defeats the ends of 

 justice and promotes the unnatural growth of crime. 



Side by side with the tendency thus described may be noted an- 

 other, namely, the diversion of attention, in an increasing ratio, from 

 crime as an abstraction to the criminal as its concrete embodiment, 

 from the act to the actor, 3 and this has been accompanied by the 



1 " Our criminal procedure appears, in many instances, to point only at the 

 destruction of the accused" - Beccaria (1764). 



* Even in China the number of blows which may lawfully be inflicted upon 

 an offender has been reduced from one hundred to forty. 



3 " All responsible action is primarily postulated along the line of free will 

 functioned upon the moral intuitions. Where freedom ceases, automatism 

 begins. Beyond that point conduct may be a menace, but it can never be 

 a crime; it may be an event, but in no sense an act." - Drahms. 



