there was a proof of ignorance or of inability to differentiate between right and wrong, were exempted from liability as were also idiots and lunatics. However, very little solicitude was manifested for the inebriate as far as the proof of the crime was concerned, though the codes sanctioned the reposing of discretion in the trial judge to determine what the actual penalty should be, provided such penalty was within the maximum and minimum provided by the statute, and to this end, allowed proof of extenuating and mitigating circumstances.

Nowhere, however, in either the Classical or Neo-Classical Schools was there, seemingly, any thought of reformation and no provision made for probation and parole. What was sought to be arrived at was the guilt of the prisoner and the basic thought seems to have been that the protection of society could be obtained by the expedient of punishment and of making crime unprofitable.

THE POSITIVE SCHOOL OF PENOLOGY

We next encounter the so-called Positive School of Penology which taught that criminals are born and not made and that punishment was unseemly and futile. The exponents of this theory admitted that precaution against such offenders should be taken and conceded the right of self-protection to society. Their emphasis, however, was placed upon segregation and reformation rather than on punishment or intimidation. Their thesis was that usually advocated by the modern psychiatrists who, however, do not entirely disapprove of punishment but insist upon the individualization of each particular case.10

• Lombroso and his school look upon habitual criminals as atavistic renewals of a type of man which civilized society has essentially left behind.

Illustrating the different attitudes of mind are two comments on the wellknown McNamara trial:

Dean John H. Wigmore of the Northwestern University Law School in an interview, said: "He deliberately killed a score of defenseless beings under circumstances which have never been regarded as anything but plain murder outside of the tenets of Machiavelli or the Hindu thugs or Stevenson's dynamiters."

In commenting on this same trial, Clarence Darrow of Chicago stated that: "The boys are not murderers at heart; they thought they were just fighting a battle between capital and labor."

10 In an address delivered before the Eleventh Annual Meeting of the Eugenics Research Association on June 16, 1922, Judge Harry Olson of Chicago said:

"So far I have emphasized mental deficiency in connection with crimes of violence, but mental deficiency lies equally at the bottom of all crime, the type of crime depending upon the nature and extent of the defect. This is made apparent in the Thirteenth and Fourteenth Annual Reports of the Municipal Court of Chicago, pages 188 to 250, where the diagnoses of a large number of law breakers, their type of crime, and their criminal histories, are recorded. An indication of the type of defect most common may be gathered in a list of 2,000 cases.

"The judges send only suspected cases to the laboratory. Out of 779 cases in the Boys' Court, there were 654 suffering from dementia praecox, or about 84 per cent; 109 psychopathic constitution, or about 13 per cent, and 10 epilepsies, or less than 2 per cent.

"In the Morals Court, out of 464 cases of females, 260 or 36 per cent were dementia praecox; 92 psychopathic constitution, or 19 per cent, and 4 epilepsies or less than 1 per cent.

"Out of 359 cases of males in the Morals Court, 107 were dementia praecox, 110 psychopathic constitution, and 4 epilepsies.

"Out of 657 cases of males in the Domestic Relations Court, 236 were dementia praecox, 295 psychopathic constitution, and 3 epilepsies.

THE SCHOOL OF MODERN PENOLOGY

Next follows what may be termed the School of Modern Penology. This group of thinkers is in accord with the Positivists in the belief that the old conceptions of insanity and mental deficiency, and therefore of criminal responsibility, were too limited and that there is at least a modicum of truth in the theory of the existence of mental diseases and uncontrollable hereditary impulses which make the commission of crime almost inevitable. In a large measure the disciples of the school agree with the policy of individualization and segregation. They do not, however, discard the theory of punishment, and except in the cases of diseases mentioned, they recognize the Classical and Neo-Classical idea of free will and of individual responsibility.

The modern penologist reflects the New as opposed to the Old Testament influences. He places no little emphasis on the story of the thief upon the cross and of the woman taken in adultery, and he is firmly convinced of the possibility of repentance and of reformation. He admits that the culprit should be punished but believes

11

"In the outside criminal branches of 270 males, 107 were dementia praecox, 68 psychopathic constitution, and 5 epilepsies. "Out of 152 females, 84 were dementia praecox, 41 psychopathic constitution, and 1 epilepsy.

"You will observe, therefore, that dementia praecox plays the highest role and is the criminal psychosis par excellence.

"The persons of stunted intellect and moral defects are scattered all through society. They account for the greatest burden of educators, from the kindergarten to the university. They account for many of the wife desertions, the bizarre and often cruel domestic entanglements, and the divorces. They account for the carelessness, the irresponsibility and the quarrelsomeness, which check industrial production. They account for some of the needless civil litigation and for much of the lying of witnesses.

"Now, what is the great menace from irresponsibility at the present time? Obviously it is the easy reproduction of the unfit. The majority of competent men and women are putting rigid limitation upon the number of their offspring. It is the natural reaction of their sense of responsibility. The defectives have as much instinct for reproduction as normals, some of them much more. They lack the innate inhibitions against easy and rapid reproduction.

"We cannot do what our ancestors did at a not remote period: put to death every incorrigible criminal. That would help us out to a considerable extent, but it is impossible. We cannot deport our undesirable stocks. We have not been able thus far to keep other countries from unloading on us. We cannot unsex all our defectives. That would be the easiest, cheapest and the surest method. It would purify the life stream in a few years. But public opinion will not at this time sustain such practices on a scale commensurate with the need.

"There remains seemingly but one alternative, which is to segregate the defective delinquents in state controlled colonies where the protective environment which they need can be created. Under such control there is an abrupt end to criminal depredations and to reproduction. Both great needs of society are met. The need of the individual defective is likewise met, for he is given an opportunity to live to the limit of his powers, whatever that limit may be in each individual case. He will have all his worries and troubles removed, existence will no longer be anguish and agony for him, but a sensible balancing of work and play.

"These farm colonies for defectives are soon to be common enough. They will be in operation long before people generally realize the momentum which real race suicide has gained. They will greatly reduce the cost of the defective to society generally and to the state. For the defective will be able to pay his way when given proper restraints and wise management. And other institutions, which are well intended but have practically failed because defectiveness was not understood, will be relieved and permitted to accomplish some good.”

The church which for a long time administered a quasi criminal law of its own from an early time, sanctioned the practice of penances and of absolution, and in doing so, paved the way for the theory of the indeterminate sentence and for probation and parole. 'The modern word penitentiary, indeed, involves the

that he is able to atone for his sins and an opportunity should be given him to do so. He, therefore, believes in the policies of probation and parole and in the theory that no insane man should be executed, since, at the last minute, every one should have an opportunity to make peace with his Creator.12 The school does not believe in punishment for punishment's sake but in punishment as a means of reformation and as a warning to others. Some of its members admit that some concession should be made to the primitive desire for revenge in order that resort may not be made to self-help and lynch-law. Most of its members believe in life imprisonment rather than capital punishment. Though many interest themselves in the matter of parole out of sympathy for the prisoner, many more, and perhaps a growing number, base their support on the fact that sooner or later the convict must inevitably be returned to society and society can only be protected by the insistence upon a substantial period of supervision and control.

theory of reformation rather than of punishment. This theory, however, recognizes the doctrine of free will; it places the absolute responsibility on the individual; it absolves society, and it repudiates the theory of the later Positivists. many of whom claim that all criminal instincts are hereditary and that society and not the individual is the real culprit.

ia This is the reason for the provision in our statute that a convict shall not be hanged who has become insane in the interval between the time of his conviction and the time of his execution. Like the thief upon the cross, the established churches contend that he should have an opportunity for repentance up to the last moment, that he should be able to prepare himself to meet his God, and that if he becomes insane, there can and will be no such opportunity.

CHAPTER IV

THE POLICY OF PUNISHMENT IN EARLY ILLINOIS

Until recent years the so-called Neo-Classical School of Criminological Thought seems to have been dominant in America and it prevailed in Illinois in a much brutalized form at the time of its admission into the Union. This is evidenced by a perusal of the Revised Codes of Illinois of 1827 in which we find no provision for probation and parole. Though some discretion was allowed the judge as to the term of imprisonment and the number of lashes to be inflicted, there seems to have been but little recognition of the defenses of mental deficiency and extenuating circumstances.

Murder was punishable by death and rape by not more than one hundred stripes and imprisonment for not more than ten years. For arson a penalty was inflicted of not more than one hundred lashes on the bare back and imprisonment not exceeding three years; for burglary not less than fifty nor more than one hundred lashes, a fine of not more than one thousand dollars and imprisonment not to exceed three years; for robbery a fine not exceeding one thousand dollars, not less than fifty nor more than one hundred lashes, and imprisonment not exceeding three years; and for larceny a fine of not less than one-half the value of the thing stolen, not more than one hundred lashes, and imprisonment for a term not exceeding two years.

This code well illustrated the theories of the Neo-Classical School. In it there was no solicitude for the welfare of the criminal; no suggestion of any mental or physical deficiencies which might have been conducive to his criminality. It was a code of severe punishments which were remitted only in the case of the insane and feeble-minded, and children under the age of ten years.

Following the Classical and Neo-Classical ideas it sought to intimidate and yielded to the impulse of revenge. The lash, except in what might be called the politer crimes and in those which the members of the legislative body might themselves conceivably commit, such as the embezzlement of public funds, was the chief instrument of punishment. The terms of imprisonment were short as compared with those of more modern times, and this fact in itself negatived the idea of any inclination on the part of the State to reform the criminal or to inaugurate any system of parole. It is only fair to add, however, that the severity of the code, the short terms of imprisonment which made reform impossible, and the use of the lash in lieu of imprisonment may have been the result, not so much of cruelty as of the fact

that in the new and almost wild territory of Illinois there were few if any jails and the difficulties attending imprisonment were very great. We have often, indeed, been shocked on discovering that in the middle ages there was a general practice of killing prisoners of war and that among the ancient Hebrews capital punishments were inflicted on the very day of the offense. We seldom stop to think, however, that in those days and in those communities there were practically no prisons, no means of feeding prisoners of war, and that incarceration was practically impossible.

At the most the Illinois code of 1827 was a barbarous and an unsocial code. Its severity is especially noticeable in the light of the fact that some early humanitarian had borrowed from an ordinance of 1791 of the French Revolutionary Assembly and had caused to be incorporated in Section 14, Article 6, of the Constitution of 1818, the provision that "all penalties shall be proportioned to the nature of the offense, the true design of punishment being to reform, not to exterminate mankind."

It is, perhaps, also equally as noticeable that, though in 1833 a much humaner code was adopted, the main paragraph of the Constitution of 1827 was omitted from Section 11, Article 2, of the Constitution of 1848, which contented itself with the mere statement that "All penalties shall be proportioned to the nature of the offense and no conviction shall work corruption of blood; forfeiture of estate; nor shall any person be transported out of the state for any offense committed within the same.

Harsh as the Illinois statutes of 1827 were, however, they merely reflected the attitude of mind which was prevalent in France prior to the French Revolution and in England prior to the time of Lord Romilly, and, with the one exception of the State of Pennsylvania, in all of the American colonies. It was not until 1835 that Romilly, Mackintosh, Peel, and Buxton had succeeded in England in securing the substitution of imprisonment for corporal punishment or banishment as the most approved method of dealing with the criminal, and it was not until the French Revolution that any such change was made in France. The only exception in America, as we have stated, was the State of Pennsylvania where between 1786 and 1795 the Philadelphia Society for Alleviating the Miseries of Public Prisons secured the abolition of many of the barbarous criminal laws of that state and the substitution of imprisonment for corporal punishment in the case of all crimes except murder.

The history of Illinois, as we have seen, started in 1718 when colonists were sent out from France, and the fort of Kaskaskia was erected. If any law were known during the French occupancy other than the arbitrary control of the military officers and of the clergy, the rough lynching law, and the law of self-help of the frontier, it was the law of France which preceded the more humane codes of the French Revolution. Corporal punishment was the underlying prin