This is all the more true because, if it is possible to have penal codes whose machinery of psychological coercion is planted on a platonic platform of penitentiary systems written out fair in their symmetrical clauses, but still non-existent, as is the case in Italy, this is not possible in regard to penal procedure. The regulations of the code of ``instruction'' must of necessity be carried out by a judicial routine. The penal code may remain a dead letter, as, for instance, when it says that punishment by detention is to be inflicted in prisons constructed with cells; for, happily, the cells necessary in Italy for fifty or sixty thousand prisoners (or in France for thirty or forty thousand) are too expensive to admit of the observance of these articles of the penal code—which nevertheless have cost so many academic discussions as to the best penitentiary system: ``Auburn,'' ``Philadelphian,'' ``Irish,'' or ``progressive.'' In the organisation of justice, on the other hand, every legal regulation has its immediate application, and therefore reforms of procedure produce immediate and visible results.
It may be added that, if the slight deterrent influence which it is possible for punishment to exercise depends, with its adaptation to various types of criminals, on the certitude and promptitude of its application, the others depend precisely and solely on the organisation of the police, and of penal procedure.
Passing over special and technical reforms which <p 147>even the classical experts in crime demand in the systems of procedure, and often rather on behalf of the criminals than on behalf of society, we may connect the positive innovations in judicial procedure with these two general principles:—(1) the equal recognition of the rights and guarantees of the prisoner to be tried and of the society which tries him; and (2) the legal sentence, whereof the object is not to define the indeterminable moral culpability of the prisoner, nor the impersonal applicability of an article in the penal code to the crime under consideration; but the application of the law which is most appropriate to the perpetrator of the crime, according to his more or less anti- social characteristics, both physiological and psychological.
From Beccaria onward, penal law developed by reaction against the excessive and arbitrary severity of the Middle Ages—a reaction which led to a progressive decrease of punishments. Similarly official penal procedure in the nineteenth century has been, and continues to be, a reaction against the medi<ae>val abuses of the inquisitorial system, in the sense of a progressive increase of individual guarantees against the domination of society.
As we considered it necessary in the interests of social self- defence, in the case of criminal law, to combat the individualist excesses of the classical school, so in regard to penal procedure, whilst admitting the irrevocable guarantees of individual liberty, secured under the old system, we think it necessary to restore the equilibrium between individual and social rights, which has been disturbed <p 148>by the many exaggerations of the classical theories, as we will now proceed to show by a few examples.
The presumption of innocence, and therewith the more general rule, ``in dubio pro reo,'' is certainly based on an actual truth, and is doubtless obligatory during the progress of the trial. Undetected criminals are fortunately a very small minority as compared with honest people; and we must consequently regard every man who is placed on his trial as innocent until the contrary has been proved.
But when proof to the contrary is evident, as, for instance, in the case of a flagrant crime, or of confession confirmed by other elements in the trial, it seems fit that the presumption should cease in view of absolute fact; and especially when we have to do with habitual criminals.
Even the criminals of this class whom I have questioned recognise a presumption of the opposite kind. ``They have convicted me,'' said an habitual thief, ``because they knew I might have done it, without any proof; and they were in the right. You will never be convicted, because you never stole; and if we happen to be innocent once in a way, that must be set against the other times when we are not discovered.'' And the ironical smile of several of these prisoners, condemned on circumstantial evidence, reminded me of a provision which was once proposed in the Italian penal code, under which a person surprised in the attempt to commit a crime, if it was not known what precise form his crime would have taken, was to be found guilty of a less serious offence. This might be good for an occasional criminal, <p 149>or a criminal of passion, but would be absurd and dangerous for habitual criminals and old offenders.
The exaggerations of the presumption ``in dubio pro reo'' are due to a sort of mummification and degeneracy of the legal maxims, whereby propositions based upon observation and generalisation from existing facts continue in force and are mechanically applied after the facts have changed or ceased to exist.
What reason can there be for extending provisional freedom, pending an appeal, to one who has already been found guilty and liable to punishment for a crime or offence, under sentence of a court of first instance? To presume the innocence of every one during the first trial is reasonable; but to persist in a presumption which has been destroyed by facts, after a first condemnation, would be incomprehensible if it were not a manifestly exaggerated outcome of classical and individualist theories, which can only see a ``victim of authority'' in every accused person, and in every condemned person also.