regarded as so far distinct from larceny that to this day, in some
jurisdictions at least, a slip corner is kept open for thieves to
contend, if indicted for larceny, that they should have been indicted
for embezzlement, and if indicted for embezzlement, that they should
have been indicted for larceny, and to escape on that ground.

Far more fundamental questions still await a better answer than that we
do as our fathers have done. What have we better than a blind guess to
show that the criminal law in its present form does more good than
harm? I do not stop to refer to the effect which it has had in degrading
prisoners and in plunging them further into crime, or to the question
whether fine and imprisonment do not fall more heavily on a criminal's
wife and children than on himself. I have in mind more far-reaching
questions. Does punishment deter? Do we deal with criminals on proper
principles? A modern school of Continental criminalists plumes itself on
the formula, first suggested, it is said, by Gall, that we must consider
the criminal rather than the crime. The formula does not carry us very
far, but the inquiries which have been started look toward an answer
of my questions based on science for the first time. If the typical
criminal is a degenerate, bound to swindle or to murder by as deep
seated an organic necessity as that which makes the rattlesnake bite,
it is idle to talk of deterring him by the classical method of
imprisonment. He must be got rid of; he cannot be improved, or
frightened out of his structural reaction. If, on the other hand, crime,
like normal human conduct, is mainly a matter of imitation, punishment
fairly may be expected to help to keep it out of fashion. The study of
criminals has been thought by some well known men of science to sustain
the former hypothesis. The statistics of the relative increase of crime
in crowded places like large cities, where example has the greatest
chance to work, and in less populated parts, where the contagion spreads