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 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.
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