uggested, 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
more slowly, have been used with great force in favor of the latter
view. But there is weighty authority for the belief that, however this
may be, "not the nature of the crime, but the dangerousness of the
criminal, constitutes the only reasonable legal criterion to guide the
inevitable social reaction against the criminal."

The impediments to rational generalization, which I illustrated from the
law of larceny, are shown in the other branches of the law, as well as
in that of crime. Take the law of tort or civil liability for damages
apart from contract and the like. Is there any general theory of such
liability, or are the cases in which it exists simply to be enumerated,
and to be explained each on its special ground, as is easy to believe
from the fact that the right of action for certain well known classes of
wrongs like trespass or slander has its special history for each class?
I think that the law regards the infliction of temporal damage by a
responsible person as actionable, if under the circumstances known to
him the danger of his act is manifest according to common experience,
or according to his own experience if it is more than common, except in
cases where upon special grounds of policy the law refuses to protect
the plaintiff or grants a privilege to the defendant. I think that
commonly malice, intent, and negligence mean only that the danger was
manifest to a greater or less degree, under the circum