the responsibility of a man on the neutral and naive criterion of a will without freedom of will?  Do they not follow their old mental habits in the administration of justice and apply the obsolete criterion of the free will, which the legislator thought fit to abandon?  We see, then, as a result of this imperfect and insincere innovation in penal legislation this flagrant contradiction, that the magistrates assume the existence of a free will, while the legislator has decided that it shall not be assumed.  Now, in science as well as in legislation, we should follow a direct and logical line, such as that of the classic school or the positive school of criminology.  But whoever thinks he has solved a problem when he gives us a solution which is neither fish nor fowl, comes to the most absurd and iniquitous conclusions.  You see what happens every day.  If to-morrow some beastly and incomprehensible crime is committed, the conscience of the judge is troubled by this question:  Was the person who committed this crime morally free to act or not?  He may also invoke the help of legislation, and he may take refuge in article 46,[A] or in that compromise of article 47,[B] which admits a responsibility of one-half or one-third, and he would decide on a penalty of one-half or one-third.

All this may take place in the case of a grave and strange crime.  And on the other hand, go to the municipal courts or to the police courts, where the magic lantern of justice throws its rays upon the nameless human beings who have stolen a bundle of wood in a hard winter, or who have slapped some one in the face during a brawl in a saloon.  And if they should find a defending lawyer who would demand the appointment of a medical expert, watch the reception he would get from the judge.  When justice is surprised by a beastly and strange crime, it feels the entire foundation of its premises shaking, it halts for a moment, it calls in the help of legal medicine, and reflects before it sentences.  But in the case of those poor nameless creatures, justice does not stop to consider whether that microbe in the criminal world who steals under the influence of hereditary or acquired degeneration, or in the delirium of chronic hunger, is not worthy of more pity.  It rather replies with a mephistophelian grin when he begs for a humane understanding of his case.

[A] Article 46:  “A person is not subject to punishment, if at the moment of his deed he was in a mental condition which deprived him of consciousness or of the freedom of action.  But if the judge considers it dangerous to acquit the prisoner, he has to transfer him to the care of the proper authorities, who will take the necessary precautions.”

[B] Article 47:  “If the mental condition mentioned in the foregoing article was such as to considerably decrease the responsibility, without eliminating it entirely, the penalty fixed upon the crime committed is reduced according to the following rules: