ideas, every switch is a delicate
instrument which may cause a derailment. The railway management places a
switchman on duty at this delicate post. But in a moment of fatigue, or
because he had to work inhumanly long hours of work, which exhausted all
his nervous elasticity, or for other reasons, the switchman forgets to
set the switch and causes a railroad accident, in which people are
killed and wounded. Can it be said that he intended the first act?
Assuredly not, for he did not intend anything and did not do anything.
The hunter who fires a shot has at least had the intention of shooting.
But the switchman did not want to forget (for in that case he would be
indirectly to blame); he has simply forgotten from sheer fatigue to do
his duty; he has had no intention whatever, and yet you hold him
responsible in spite of all that! The fundamental logic of your
reasoning in this case corresponds to the logic of the things. Does it
not happen every day in the administration of justice that the judges
forget about the neutral expedient of the legislator who devised this
relative progress of the penal code, which pretends to base 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 t