but according to these writers he would not be criminally liable. But this opinion has never been accepted by the court of appeals. "Drunkenness is a voluntary and reprehensible fact, and it can never constitute an excuse which morality or law will accept." Mark and Tardieu are of this opinion. It is also ours. Simple intoxication is punishable, because it can, if unpunished, begin to-morrow the same excesses of which the consequences will be to compromise again the interests of society and individuals. Also we prefer the silence of the French law. It permits the judges to estimate the mental condition of the delinquent, to determine the form and intensity of the drunkenness and the nature of the poisonous agent. It is not rare to meet persons of defective cerebral organization, whose condition on one side is attribable to alcoholic intoxication, and on the other to mental defects of the accused whose resistance to alcohol is less than in one who has an organization less imperfect. We do not wish to say that these persons will always be irresponsible for offenses committed by them in a state of intoxication. There are many among them who know that they can not drink without danger. They should not expose themselves to alcoholic intoxication. But there are many also whose moral and mental debasement especially diminishes the resistance of the appetite for alcoholic drinks. They are found on the boundary, which is not well defined, between simple and pathological intoxication.

Pathological intoxication. This kind of intemperance differs from the preceding in this, that the preexisting morbid condition added to the usual symptoms, acutely aggravated by alcohol, assumes a character immediately dangerous. According to the expression of Lentz "alcohol lights the fire whose ravages will be more extended in proportion as the materials upon which it feeds are more combustible.”

And there exist besides insane, properly called, imbeciles and epileptics, with whom drunkenness is especially deplorable, a numerous class of degenerate persons, bearing heavily the burden of pathological heredity, capricious in their ideas and in their acts. These are true maladies in which the intoxicating action of alcohol manifests itself more frequently by dangerous impuises. These are the unbalanced, the hereditary drunkards, who cause the most serious embarrassment. We repeat here what we have had occasion to write and to say many times already, that for these alcoholists of a special kind of whom we mark the uniformity, suffering from mental disability without power to formulate fixed conclusions, it is as impossible to take severe judicial measures as lasting administrative action in the present state of legislation. If they are confined in an asylum they are cured from the attack which exhausts itself as soon as the poison is eliminated. Cured from a transient mental trouble, they ask to be discharged, or often interested but imprudent friends make the request and the physician of the asylum is not authorized to refuse. He yields, regretting his inability; he foresees the early return, perhaps, of the same disorders under the influence of the same cause, and the law does not permit him to extend protection, social defense.

It is for this class of alcoholized delinquents that we desire the adoption of more severe measures, those which are possible to take to-day, but I dare not insist, fearing to call up an order of considerations foreign to the programme of the commission of congress, which is less occupied, if we understand it well, with the administrative, than with the judicial and penal question of intemperance.

The considerations which we submit to the congress have aimed, above all, to separate simple from pathological intoxication. We have perhaps treated the question more as a physician than as a lawyer. We have to excuse ourselves for want of sufficient ability for easily putting things in the proper place. However, we believe we are authorized to present the following conclusions:

1. In the interest of social order, of family protection, of individual preservation, voluntary intoxication should be considered as a misdemeanor and severely repressed with increase of punishment in the case of relapse.

2. The habitual drunkard should be deprived of his civil rights and his removal from office should be secured by the public minister. And as a corollary we add that persons affected by delirious attacks, active or subactive, from alcoholic intoxication, should be maintained in a special establishment during a long time. Their discharge should be postponed until every trace of intoxication has disappeared and an early relapse will not be feared.

To give to our thought a more definite form we will say:

Drunkenness is punishable, as well as misdemeanors or crimes committed under its influence, when it is classed as simple and when it is manifestly in the power of the delinquent to avoid it.

It is punishable with increase of punishment when the intoxication has been sought to incite the commission of a crime or misdemeanor.

Drunkenness is punishable, but with a degree of mitigation which belongs to the magistrate to determine, in the case of persons of feeble intelligence whose ability to resist alcoholic desires is diminished by the inferior condition of their mental organization. They should not be exculpated when they know that they can not drink without danger, and this is the case more frequently than is supposed.

Crimes or misdemeanors can not be punished when they are committed during delirium, acute or subacute, from a paroxism of alcoholism. It is the same in the case of chronic alcoholism, when the definite cerebral injuries have compromised the integrity of the organ and determined the durable disorder of its functions.

Mr. Tancred Canonico, an eminent senator of the Kingdom of Italy, and one of the most able and prominent members of the congress, presented a lengthy report on the second question of the first section. The following are the conclusions on penal legislation affecting intemperance which he submitted to the wisdom of the congress:

1. Intoxication in itself can never be punished when it is involuntary or accidental.

When voluntary intoxication is public it should be punished as dangerous to morality and public tranquility, and the degree of the punishment should be higher when the intoxication is habitual.

Public intoxication, by itself, although voluntary, does not have the real character of a misdemeanor; it constitutes only an offense, and should be punished by police penalties only.

These penalties should also be applied to those who voluntarily exhibit a drunken man in public, as well as wine-shop keepers who give alcoholic drinks to men who are plainly drunk, or to children who are evidently under 14 years of age.

2. In the case of the commission of a crime or a misdemeanor while intoxicated: When the intoxication is complete, if it is involuntary or accidental, the agent is never peually responsible. If it is voluntary, and more so if it is habitual, and the agent had not contemplated the criminal act before intoxication, the crime or misdemeanor committed during the intoxication should be charged and punished as the result of an error.

If, on the contrary, the agent had projected the crime or misdemeanor before that time and if he became intoxicated to commit the offense or to make an excuse for it, the crime or misdemeanor should be punished as the result of fraud, but with a punishment considerably less than the ordinary penalty.

When intoxication is incomplete, the crime or misdemeanor committed at the time is chargeable as an offense, though in a less degree than in complete drunkenness. It does not matter if the intoxication has been voluntary or involuntary, if in the case of voluntary intoxication the agent has contemplated the criminal act before intoxication.

In the mean time, to determine the extent of decrease in the usual punishment, it is

rfecessary to estimate either the degree of intoxication or the coöperation of the will in the act of intoxication, and of the voluntary use made of drunkenness as a means to faciliate the perpetration of the projected crime.

Senator Canonico, after stating his conclusions, adds the following at the close of his discourse:

Such is the solution which I submit to the congress on the question of penal legislation relative to intemperance. But we should not forget that the law can only give general directions in fixing clearly the basis of essential right for each conviction. It belongs to the judges to seize the spirit of the law and to apply it properly in each individual case. There are many who believe that the prosperity of a state is assured when it has good laws. Good laws are necessary, without doubt, but that is not all. The true guaranty of the regular and salutary operation of social authority is in the personal qualities of the public officers. The law is made for man, that is to say, for a moral being, one in his nature but multiplied in his individual variety. The law can not become a vital element of society except in the different special cases it is applied in a manner corresponding to the different conditions of each person. And this can not be done in penal matters, except by magistrates who are themselves the living incarnation of law, who to the exact knowledge of positive law, to a right sentiment of its spirit, to zeal for justice and public security, unite a sincere and impartial love for the man whom they are called to judge, so that they will not consider in advance each prisoner as an enemy of society, but retain the liberty to recognize cases which are not uncommon, where the accused is more unfortunate than guilty.

The commission of the Jurisprudence Society of St. Petersburg presented numerous reports on the various questions submitted. Mr. Sliosberg, advocate, of St. Petersburg, on behalf of that commission, presented a report on the second question.

The following are his conclusions:

1. The state of intoxication, considered in itself, should not constitute a crime; it only calls for repression where it is accompanied by violations of order, safety, and good manners.

2. The utility of legislative provisions establishing measures of restraint in regard to subjects continually or habitually given to drunkenness should not be denied; the provisions having only a repressive character for those cases where there is habitnal intoxication, the person will then become a public charge or, above all, will become a beggar or a drunkard.

3. It is urgent that the proprietors of retail wine shops should be held responsible for the sale of strong liquors to individuals who are manifestly already intoxicated. 4. The state of intoxication can affect the punishment as an extenuating circumstance, but the criminal law should not give a general definition in cases of this kind; it deals only with general provisions concerning the punishments and the circumstances on which they depend.

5. The condition of the drunkard should never aggravate the punishment, except in the case of intoxication premeditated for the purpose of committing an offense.

Mr. Charles Baer, counselor of the Oberlandesgericht in Carlsruhe, closes his report or address on the first part of the second question of the first section with the following conclusions:

1. Intoxication can not be considered as a general excuse for crime.

2. Except where the intoxication is brought on by design, for the purpose of committing a premeditated crime, and where the criminal result of the intoxication could

have been forescen, the penal responsibility of the delinquent can not be admitted if the intoxication suppresses the free will of the author of the crime. The fact that intoxication is chargeable to the fault of the latter modifies nothing in principle.

I do not discuss the controverted question whether it can be admitted that free will is excluded by the complete disorder of the senses while consciousness exists, or whether free will is excluded by the suppression of consciousness. It is not desirable that this question should be regulated by law, because such solution by the legislature could never prevent that of the question of free will and the loss of consciousness by the courts in a manner free from all legislative influence.

3. If we treat intoxication as "delictum sui generis," occasioned by the fault of the drinker and instigating offenses, these offenses committed in a state of drunkenness and irresponsibility chargeable to the offender can not be taken into consideration by themselves, and only as natural circumstances to influence the extent of the punishment.

4. Accidental intoxication, not chargeable to the drinker, excludes culpability.

As to the second part of the second question relative to mitigation or aggravation of the penalty when the crime has been committed in a state of drunkenness, Mr. Baer spoke also at some length.

SECOND SECTION-QUESTION 6.

MR. BROCKWAY ON INCORRIGIBILITY.

"Are we at liberty to declare any criminals or delinquents to be incorrigible, and, if so, what means should be used to protect society against them?"

Complete protection against incorrigible criminals requires that their crimes shall not only cease, but that they shall exert no evil influence for crimes by others, and that they shall be restrained in such a manner that no public expense is incurred. To incapacitate by destroying them would certainly afford protection as against their further crimes, and, once accomplished, would relieve society from any further cost for their maintenance; but, possibly, the evil effect of life-taking for incorrigibility might prove worse than to permit them to live and pursue their criminal calling. There is much reason to believe that a frequent infliction of the death penalty for crimes has a debasing effect upon society at large, and we are not at all sure that the fact of incorrigibility should be taken as prima facie evidence of mental defect or aberration in the criminal. In which case, it may be said that the state of public sentiment which, insensible or indifferent to the cruelty of it, destroys the life of incorrigible criminals, would also put to death the incurably insane and remediless defectives of every kind, indicating thus a state of barbarism favorable to crimes, the crimes and the criminals in turn actually contributing to the public sentiment that produces them.

Crime is savagery projected into civilization, but it is civilization itself that classifies as crimes the cruelty, brutality, and robbery which, in a different state of society, would be tolerated without complaint. Civilization, while seeking to repress crime, does at the same time greatly multiply the incentives to it, and by the competition and inequalities of life actually creates here and there conditions favorable to the production of criminals. If, then, crime is inevitable, it is of necessity inextricable, and so there can not be of course any complete protection from incorrigible criminals. If it is impossible, as it is unwise, to utterly destroy incorrigibles, then they should be restrained by their imprisonment.

It is believed, from the best information at hand, that the deportation of crimi nals to convict colonies is not the best imprisonment; indeed, to such as have had

opportunity only to observe the operation of the system from a distance, it seems an unreasonable one, and amusing that it has been so extensively in use. If the purpose of deportation is to deter others from crimes through fear of severing, by this penalty, the attachment of inhabitation, it can hardly be effective with the incorrigible class of criminals, because they, as a class, are not very strongly bound to place and home. They go away with gladness, or at least with indifference, if they are only journeying to new and untried surroundings. It is probable also that the desire to resume their associations with boon companions and even criminal associates already sent out to the criminal colony, having in some sense prepared the way, may be attractive, and with the criminally inclined class in society may often prove an incentive to actual crime. We are told, too, that the best administration of convict colonies has not, in the history of them, very completely prevented crimes by incorrigible criminals -not even during their period of colonial imprisonment. Moreover, if the conditions of imprisonment do not actually increase criminal tendencies, it is scarcely possible that any effective repression is maintained; in which case imprisonment in colonies can not contribute to diminish the danger of fresh crimes by the criminal on his release.

Any good degree of protection from incorrigible criminals by their imprisonment, whether imprisoned at home or abroad, must include, (a) that they be sentenced under the so-called indeterminate sentence principles; (b) that they be confined in prisons separate from the corrigible class; (c) that they be kept mainly within a prison inclosure with the least possible opportunity to communicate with outside persons or to know of current public affairs; (d) that when the public sentiment is enlightened enough to allow it they shall be employed at productive work, carried on for the earnings of it, and (e) the restraint and treatment to which they are subjected should be that which affords the best public protection without having any regard to purpose of punishment, whether retributive or deterrent.

The proposed separate prisons for incorrigibles would naturally form the lowest condition for the convicts of a State-the lowest in a graduated series of prison establishments. It is not difficult to organize and conduct such a prison so as to insure with reasonable certainty the safe custody of the criminals, but to avoid an evil influence of this prison upon the corrigible convicts undergoing reformative treatment in the prisons of a higher grade is not so easily accomplished. Unquestionably it is true that the incentives to improvement supplied to the better class of prisoners by what must of necessity be painfully sustained efforts and activities are likely to be considerably neutralized by the attractions of ease and quietness of convicts confined in the prisons for incorrigibles, where efforts for their betterment are much relaxed or abandoned, since by bad conduct and consequent transfer to the prisons for incorrigibles relief may be had from the exactions of reformative treatment. On the other hand, it is an error to suppose that privation and hardships, introduced and intended solely to counteract such an effect, will, in the absence of a real benevolent purpose, be serviceable. Such hardships excite, both with the criminals and with the public at large, first, sympathy with the sufferer; then pity; and often a feeling of bitterness toward the government-a feeling which is, wherever it exists, opposed to the reformation of criminals and to the peace and security of society. For such reasons, and because the selection of incorrigible criminals must probably include among them some who are corrigible, this separate prison for the lowest class of criminals should, like the prisons of a better grade, compel the prisoner to pursue the processes of improving themselves, even though no reformations are expected to be accomplished among them. To this extent, at least, such processes should be enforced: The prisoner must be employed at productive work, so organized that he is obliged to earn the essentials of his own subsistence; earning what he has to live upon, and, within due limits, having for himself what he earns. Most stringent disciplinary regulations should be enforced-regulations that reach to very minute matters, to the personal habits and bearings of each, and to prevent