Bentham relates that in England the delays caused by hard-drinking couriers, who used to be heavily fined without any good result, were obviated by combining passenger traffic with the postal service. Employers of labour secure industry and the most productive work far more easily by offering a share of the realised profits than by a system of fines. In the German universities, academic jealousies and intolerance have been in great measure overcome by paying the professors in proportion to the number of their pupils, so that the Faculties find it to their interest to engage and encourage the best professors, in order to attract as many students as possible. Thus the activity and zeal of professors, magistrates, and officials would be stimulated if their remuneration depended not only on the automatic test of seniority, but also on the progress displayed by publications, sentences not reversed, settlements not cancelled, and the like. It is better to regulate the disturbing restlessness of children by timely diversions rather than by attempting to repress them in a manner injurious to their physical and moral health. So in lunatic asylums and prisons, work is a better means of order and discipline than chains and castigation. In brief, we obtain more from men by consulting their self-respect and interests than by threats and restraint <p 112>
If the counteraction of punishment must inevitably be opposed to criminal activity, still it is more conducive to social order to prevent or diminish this activity by means of an indirect and more effective force.
In the economic sphere, it has been observed that when a staple product fails, recourse is had to less esteemed substitutes, in order to supply the natural wants of mankind. So in the criminal sphere, as we are convinced by experience that punishments are almost devoid of deterrent effect, we must have recourse to the best available substitutes for the purpose of social defence.
These methods of indirect defence I have called penal substitutes. But whereas the food substitutes are as a rule only secondary products, brought into temporary use, penal substitutes should become the main instruments of the function of social defence, for which punishments will come to be secondary means, albeit permanent. For in this connection we must not forget the law of criminal saturation, which in every social environment makes a minimum of crime inevitable, on account of the natural factors inseparable from individual and social imperfection. Punishments in one form or another will always be, for this minimum, the ultimate though not very profitable remedy against outbreaks of criminal activity.
These penal substitutes, when they have once been established in the conscience and methods of legislators, through the teaching of criminal sociology, will be the recognised form of treatment for the social factors of crime. And they will also be <p 113>more possible and practical than that universal social metamorphosis, direct and uncompromising, insisted on by generous but impatient reformers, who scorn these substitutes as palliatives because humanitarian enthusiasm causes them to forget that social organisms, like animal organisms, can be only partially and gradually transformed.
The idea of these penal substitutes amounts, in short, to this. The legislator, observing the origins, conditions, and effects of individual and collective activity, comes to recognise their psychological and sociological laws, whereby he will be able to obtain a mastery over many of the factors of crime, and especially over the social factors, and thus secure an indirect but more certain influence over the development of crime. That is to say, in all legislative, political, economic, administrative, and penal arrangements, from the greatest institutions to the smallest details, the social organism will be so adjusted that human activity, instead of being continually and unprofitably menaced with repression, will be insensibly directed into non-criminal channels, leaving free scope for energy and the satisfaction of individual needs, under conditions least exposed to violent disturbance or occasions of law-breaking.
It is just this fundamental idea of penal substitutes which shows how necessary it is that the sociologist and legislator should have such a preparation in biology and psychology as Mr. Spencer justly insisted on in his ``Introduction to Social Science.'' And it is the fundamental idea rather than the substitutes themselves that we should bear in mind if we <p 114>would realise their theoretical and practical value as part of a system of criminal sociology.
As for the efficacy of any particular penal substitute, I readily admit, in some sense at least, the partial criticisms which have been passed upon them. Apart from such as simply say that they do not believe in the use of alternatives to punishment, and such as confine themselves to the futile question whether this theory belongs to criminal science or to police administration, a majority of criminal sociologists have now definitely accepted the doctrine of penal substitutes. This theory is accepted, not as an absolute panacea of crime, but, as I have always stated it, in the sense of a combination of measures analogous to penal repression; in place of trusting solely to repression for the defence of society against crime.
Let us take note of a few examples.
I. In the Economic Sphere.—Free Trade (apart from the temporary necessity of protecting a particular manufacturing or agricultural industry), by preventing famines and exceptional high prices of and taxes on food, eliminates many crimes and offences, especially against property.—Unrestricted emigration is a safety- valve, especially for a country in which this phenomenon, assuming large proportions, carries off many persons who are easily driven to crime by wretchedness, or by their unbalanced energy. Thus the number of recidivists has diminished in Ireland, not by virtue of her prison systems, but by emigration, which reached forty-six per cent. of released prisoners. In Italy, also, there has been a decrease <p 115>of crime since 1880, owing to other causes, such as mild winters and plentiful harvests, but also through a vast increase of emigration.—Smuggling, which for centuries resisted extremely harsh punishments, such as amputation of the hand, and even death, and which still resists prison and the fire-arms of the revenue officers, is suppressed by the lowering of the import tariff, as M. Villerm<e'> has shown in the case of France. So that everyday facts justify the system of Adam Smith, who said that the law which punished smuggling, after creating the temptation, and which increased the punishment when it increased the temptation, was opposed to all justice; whilst Bentham, on the contrary, departing from his maxim that the punishment ought to be dreaded more strongly than the offence attracted, called for the stern repression of smuggling.—The system of taxation which touches wealth and visible resources instead of the prime necessaries of life, and which is proportional to the taxpayer's income, diminishes the systematic frauds which no punishment availed to stop, and it will also abolish the arbitrary and exaggerated fiscal traditions which have been the cause of rebellions and outrages. In fact, Fr<e'>gier describes the criminal industries which are called into existence by octrois, and which will disappear with the abolition of these absurd and unjust duties. And whilst M. Allard demonstrated that a decrease of taxes on necessaries would have beneficial effects, not only in economic affairs but also in respect of commercial frauds, the Report on French Criminal Statistics for 1872 calmly continued to call for more severe repression of such frauds. To <p 116>this M. Mercier replied that if the cause—that is to say, disproportionate taxes—were not removed, it would be impossible to prevent the effects.—Immunity from taxation for the minimum necessary to existence, by preventing distraint, and the consequent diminution of small properties, which means the increase of the very poor, will obviate many crimes, as we see from the agrarian conditions in Ireland. Thus there is a demand in Italy for the inalienability of small properties, as in America under the Homestead Exemption Law.—Public works, during famine and hard winters, check the increase of crimes against property, the person, and public order. For instance, during the scarcity of 1853-5 in France, there was no such enormous increase of theft as during the famine of 1847, simply because the Government set up vast relief works in the winter months.