Thus we find that France, after the proposals of Michaux, Petit, and Migneret, and especially after the advocacy of M. Reinach, followed by several publications of a like kind, agreed to the law of 1885 on the treatment of recidivism.
Messrs. Murray Brown and Baker spoke at the Prison Congress at Stockholm and at the Societe Generale des Prisons at Paris, of the system of cumulative and progressive sentences adopted, though not universally, in England with respect to hardened criminals. The term of imprisonment is increased, almost regularly, on each new relapse. This is the system which had already been suggested by Field and Walton Pearson at the Social Science Congress in October, 1871, and subsequently by Cox and Call, who was head of the police at Glasgow, at the Congress of 1874, and which, as Mr. Movatt pointed out, was adopted in the Indian penal code, and had been established in Japan by a decree fixing perpetual imprisonment after the fourth relapse.
The delegate from Canada at the Prison Congress at Stockholm testified that short terms of imprisonment increased the number of offences. ``After a first sentence many offenders in this class become professional criminals. Professional thieves, who are habitual offenders, ought, with few exceptions, to be sentenced to imprisonment for life, or for a term equivalent to the probable remainder of their life.'' The draft Russian code, in 1883, provides that, ``If it is found that the accused is guilty of several offences, and that he has committed them through habitual criminality, or as a profession, the court, when deciding upon the punishment in relation to the different crimes, may increase it,'' &c. And the Italian penal code, though with much timidity, has decreed a special increase of punishment for prisoners ``who have relapsed several times.''
Quite recently, Senator Berenger introduced a measure in France ``on the progressive increase of punishment in cases of relapse,'' which became law on March 26, 1891, under the title of ``the modification and increase of punishments.''
It is therefore very probable that even the classical criminalists will end by accepting the indefinite seclusion of hardened criminals, as they have already come to accept criminal lunatic asylums, though both ideas are opposed to the classical theories.
This is so true that at the Prison Congress at St. Petersburg in 1889 the question was first propounded ``whether it can be admitted that certain criminals should be regarded as incorrigible, and, if so, what means could be employed to protect society against this class of convicts.'' And speaking as a delegate from the Law Society of St. Petersburg, M. Spasovitch acknowledged that ``this question bore the stamp of its origin on its face. Of all the questions in the programme, it seemed to be the only one directly inspired by the principles of the new positive school of criminal anthropology, whose theories, propagated beyond the land of their birth in Italy, tended to a radical reform in science as well as in legislation, in the penal law as well as in procedure, in ideas of crime as well as in the modes of repression.''
The Congress, in spite of some expressions of reserve, as when Madame Arenal platonically observed that ``an uncorrected criminal is not synonymous with an incorrigible criminal,'' adopted the following resolution:--``Without admitting that from the penal and penitentiary point of view there are any absolutely incorrigible criminals''--which is pure pedantry--``yet since experience shows that there are in fact individuals who resist the combined action of punishment and imprisonment''--a notable admission!--``and who habitually and almost professionally renew their violation of the laws of society, this section of the Congress is unanimously of opinion that it is necessary to adopt special measures against such individuals.''
Similarly the International Union of Penal Law, in its session at Berne (August, 1890), expressed the opinions of the majority in the following terms:--``There are malefactors for whom, in view of their physical and moral condition, the constant application of ordinary punishments is inadequate. In this class are specially included the hardened recidivists, who ought to be considered as degenerate criminals, or criminals by profession. Malefactors ought to be subjected, according to the degree of their degeneration, or of the danger which they threaten, to special measures, framed with the purpose of preventing them from inflicting harm, and of amending them if possible.'' And in the session at Christiania (August, 1891), after the remarkable contribution of Van Hamel, the Union, after rejecting the proposition of Felisch, which spoke of ``the uncorrected'' in place of the ``incorrigible,'' unanimously approved the conclusions of Van Hamel:--``With a view to the more complete study of the character and injurious influence of habitual offenders, notably of such as are incorrigible (a study which is absolutely indispensable for legislation), the Union instructs its officers to urge upon the various Governments the great importance of statistics of recidivism which shall be detailed, precise, uniform, and adapted for comparative study. For incorrigible habitual offenders it is absolutely necessary that the trial on the last charge shall not definitely determine the treatment of the offender, but that the decision shall be carried on to a further inquiry, which shall have regard to the offender personally, to his past, and to his conduct during a fixed period of observation.