How to punish crime, and in so doing reform the criminal; how to uphold
the man as a terror to evil-doers, and yet at the same time be
implanting in him the seeds of a future more happy and prosperous
life--this is perhaps the most difficult problem of legislation. We are
far from despairing of some approximation to a solution, which is the
utmost that can be looked for; but we are also convinced that even this
approximation will not be presented to us by those who seem willing to
blind themselves to the difficulties they have to contend with. Without,
therefore, assuming the air of opposition to the schemes of
philanthropic legislators, we would correct, so far as lies in our
power, some of those misconceptions and oversights which energetic
reformers are liable to fall into, whilst zealously bent on viewing
punishment in its reformatory aspect.
We have selected for our comments the pamphlets of Captain Maconochie,
not only because they illustrate the hasty and illogical reasonings, the
utter forgetfulness of elementary principles, into which such reformers
are apt to lapse; but also for the still better reason, that they
contain a suggestion of real value; a contribution towards an efficient
prison-discipline, which merits examination and an extensive trial. We
have added to these pamphlets a brief work of Zschokke's, the venerable
historian of Switzerland, on death-punishment, in order that we might
extend our observations over this topic also. It is evident that the
question of capital punishment, and the various questions relating to
prison discipline, embrace all that is either very interesting or very
important in the prevailing discussions on penal legislation.
Transportation forms no essentially distinct class of punishment, as the
transported convict differs from others in this only, that he has to
endure his sentence of personal restraint and compulsory labour in a
foreign climate.
Reformatory punishment! Alas, there is an incurable contradiction in the
very terms! Punishment is pain, is deprivation, despondency, affliction.
But, would you reform, you must apply kindness, and a measure of
prosperity, and a greater measure still of hope. There is no genial
influence in castigation. It may deter from the recommission of the
identical offence it visits, but no conversion, no renewal of the heart,
waits on its hostile presence; the disposition will remain the same,
with the addition of those angry sentiments which pain endured is sure
to generate. No philosopher or divine of these days would invent a
purgatory for the purifying of corrupted souls. No--he would say--your
purgatory may be a place of preparation if you will, but _not_ for
heaven. You may make devils there--nothing better; he must be already
twice a saint whom the smoke of your torments would not blacken to a
demon.
We may rest assured of this, that the actual infliction of the
punishment must always be an evil, as well to mind as body--as well to
society at large as to the culprit. If the threat alone could be
constantly efficacious--if the headlong obstinacy, the passion, and the
obtuseness of men would not oblige, from time to time, the execution of
the penalty, for the very purpose of sustaining the efficacy of the
threat--all would be well, and penal laws might be in full harmony with
the best educational institutions, and the highest interests of
humanity. But the moment the law from a threat becomes an act, and the
sentence goes forth, and the torture begins, a new but unavoidable train
of evils encounters us. There is war implanted in the very bosom of
society--hatred, and the giving and the sufferance of pain. And here, we
presume, is to be found the reason of the proverbially severe laws of
Draco, which, being instituted by a man of virtue and humanity, were yet
said to have been written in blood: he desired that the threat should be
effective, and that thus the evils of punishment, as well as of crime,
should be avoided.
Whatever is to be effected towards the genuine reformation of the
culprit, must be the result, not of the punishment itself, but of some
added ingredient, not of the essence of the punishment; as when hopes
are held out of reward, or part remission of the penalty, on the
practice of industry and a continuance of good behaviour.
And yet--some one may here object--we correct a child, we punish it, and
we reform. The very word correction has the double meaning of penalty
and amendment. If the plan succeeds so well with the infant, that he who
spares the rod is supposed to spoil the child, why should it utterly
fail with the adult? But mark the difference. You punish a child, and a
short while after you receive the little penitent back into your love;
nay, you caress it into penitence; and the reconcilement is so sweet,
that the infant culprit never, perhaps, has his affections so keenly
awakened as in these tearful moments of sorrow and forgiveness. The
heart is softer than ever, and the sense of shame at having offended is
kept sensitively alive. But if you withdrew your love--if, after
punishment inflicted, you still kept an averted countenance--if no
reconcilement were sought and fostered, there would be no reformation in
your chastisement. Between society and the adult culprit, this is
exactly the case. Here the hostile parent strikes, but makes no after
overture of kindness. The blow, and the bitterness of the blow, are left
unhealed. Nothing is done to take away the sting of anger, to keep the
heart tender to reproof, to prevent the growing callousness to shame,
and the rising rebellion of the spirit. And here reveals itself, in all
its force, another notorious difficulty with which the reformer of penal
codes has to contend.
In drawing the picture of the helpless condition of the convicted and
punished criminal, how often and how justly does he allude to the
circumstance, that the reputation of the man is so damaged that honest
people are loath to employ him--that his return to an untainted life is
almost impossible--and that out of self-defence he is compelled to
resort again to the same criminal enterprises for which he has already
suffered. Struck with this view, the reformer would institute a
penitentiary of so effective a description, that the having passed
through it would be even a testimonial of good character. But who sees
not that the infamy is of the very essence of the punishment? A good
character is the appropriate reward of the good citizen; if the criminal
does not pay the forfeit of his character--if only a certain amount of
temporary inconvenience is to be sustained, the terror of punishment is
at an end. Here, on the arena of public life, between society and the
culprit, are they not manifestly incompatible--the tenderness that would
reclaim, and the vigour that must chastise?
There is no question here, we must observe, of that delicate sense of
shame which is the best preservative against every departure from
rectitude. This has been worn out, and almost ceased to operate on the
majority of persons who expose themselves to the penal laws of their
country. It is the value of character as a commercial commodity, as a
requisite for well-being, that alone has weight with them. Benevolent
projectors of reform, more benevolent than logical, are fond of
comparing a prison to an hospital; they contend that the inmates of
either place are sent there to be cured, and that they should not be
restored to society until they are restored, the one to health of body,
the other to health of mind. Would they carry out the analogy to its
fair completeness, and maintain that the patient from either hospital
should be remitted to society with a character equally free from stain?
Is the man to be received by the community with the same compassionate
welcome who has gone into prison to be cured of a propensity to theft,
as one who has entered an hospital to be relieved of a disease?
An hospital is a word of no inviting sound--and physic, no doubt, is
sufficiently nauseous to be not inaptly compared to flogging, or any
other punitive discipline: but nauseous drugs are not the only means of
cure; good nursing, vigilant attendance, sometimes generous diet, have a
large share in the curative process. And in the hospital of the mind,
the lenitive and fostering measures have a still larger share in the
work of a moral restoration. Were this principle of cure, of perfect
restoration, to be adopted as the first principle of penal legislation,
it would come to this, that a poor man would have no better way of
recommending himself to the fatherly care of the state than by the
commission of a crime, and that none, in the lower classes of society,
would be so well trained and disciplined for advancing their fortunes in
the world, as those who commenced their career by violating the laws of
their country.
Imprisonment, with its various accompaniments and modifications, is the
great reformatory punishment. Indeed, with the exception of
death--confined almost entirely to the case of murder--it is the only
punishment bestowed on serious offences. Imprisonment of some kind,
either at home or in the colonies, is the penal safeguard of society;
and we must be cautious that we do not so far diminish its terrors, that
it should cease to hold out any threat to a needy malefactor. But before
we allude to the discipline of the prison, we must take a glance at this
great exception of death, which it is the object of many of our zealous
reformers entirely to erase from the penal code.
That this extreme punishment should be reserved for the extreme crime of
murder, seems generally admitted; and the practice, if not the letter,
of our law has conformed to this opinion. It would be useless,
therefore, to argue on the propriety of inflicting this penalty on other
and less enormous offences. The question is narrowed to this--shall
death continue to be the punishment of the murderer?
Those who contend for the entire abolition of this punishment, are in
the habit of enlarging much on the inadequate effect produced upon the
multitude who witness the spectacle of an execution. This is their
favourite and most frequent theme. They seem to overlook the much more
powerful effect produced on the imagination of that far greater
multitude who never behold, or are likely to behold, an execution. It is
curious to observe how pertinaciously a certain class of reasoners will
dwell on the picture which a crowd presents at a public execution;--much
like a crowd, we may be sure, at any other public spectacle. Whatever
the object which gathers together a mob of the lowest class, they will
soon begin to relieve the tedium of expectation by coarse jests,
drunkenness, and brawling. Yet these descriptive logicians are never
weary of painting to us the grotesque and disgusting scenes which the
mass of spectators exhibit on these occasions, as if this were quite
decisive of the question. That ragged children, who have never thought
of death at all, play their usual pranks at the foot of the
gallows--that pickpockets ply their trade in this as in every other
gaping crowd--what has all this to do with the impression produced on
the mind of every man and woman throughout the kingdom, by the knowledge
that if he, through sudden passion, or the instigations of cupidity,
take the life of a fellow-creature, he shall be--not a spectator at such
an exhibition--but that solitary crawling wretch who, after having spent
his days and nights in agony and fear, is thrust forward, bound and
pinioned, to be hanged up there like a dog before the scoffing or
yelling multitude?
We willingly concede that a public execution is not an edifying
spectacle. The coarse minds who can endure, and who court it, are the
last to whom such a spectacle should be presented. And, although the
punishment might lose some portion of its terrors, we should prefer that
the execution should take place in a more private manner; in the
court-yard, for instance, of the prison, and before a selected number of
witnesses, partly consisting of official persons, as the sheriffs and
magistrates, and partly of a certain number of persons who might be
taken from the several jury lists--the option being given to them either
to accept or decline this melancholy office. This would be a sufficient
publicity to ensure an impartial administration of the laws. The only
doubt that remains is, whether it would be sufficient to prevent the
spread of false rumours, and absurd suspicions, amongst the people. It
is a prevailing tendency with the mob, whenever any one at all above
their own condition is executed, to believe that he has been favoured
and allowed to escape. Even in the face of the most public execution,
such rumours are circulated. We understand that Mr Tawell is confidently
reported to be living at this moment in America. Such suspicions,
however ridiculous and absurd, must be cautiously guarded against.
After all, the mode of execution is but of secondary importance; arrange
it how you will, it is a lamentable business. Like all other
punishments, and still more than all other punishments, the actual
infliction of it is an evil to society. When the law passes from the
threat to the execution, it is a social disaster. The main point is,
that we present to the imagination of every man a great threat--that of
almost immediate extermination--if he lift his hand against his
neighbour's life.
That which renders the punishment of death peculiarly appropriate, in
our estimation, in the crime of murder, is not by any means its
retaliative character; the sentiment, that "blood must have blood," is
one which we have no desire to foster; and if some less grievous penalty
would have the same effect in deterring from the crime, we should, of
course, willingly adopt it. Our ground of approval is this, that it
presents to the mind an antagonist idea most fit to encounter the
temptation to the crime. As this temptation must generally be great, and
often sudden, that antagonist idea should be something capable of
seizing upon the apprehension at once--of exercising at once all its
restraining efficacy. Imprisonment for length of years--the mind must
calculate and sum up the long list of pains and penalties included in
this threat, before its full import is perceived. But death! And then
the after-death! For what makes the punishment of death so singularly
applicable to the case of murder is this, that it awakens whatever may
exist of religious terror in the mind of him who contemplates the crime.
On the one hand, he is about to commit a deed on which there are not two
opinions; it is not a crime made such by the laws; it is not even a
robbery, for which he may frame excuses out of his destitution, and the
harsh distinctions of society; it is murder, which heaven and earth,
rich and poor, equally denounce. On the other hand, his guilt will bring
him almost immediately before the tribunal of God, as well as the
judgment-seat of man. No long interval weakens the impression, no long
space holds out the vague prospect of repentance and amendment, and
compensatory acts of goodness; but if he will lift the knife, if he
will mingle the poison, there is the earthly executioner at hand to
transfer him to the still more dreadful sentence of the after-world! The
same opinion which condemns the crime of murder here on earth, as the
most atrocious that can be committed, follows him to that other
tribunal; and all that his imagination has been accustomed to depict of
the horrors of internal and eternal punishment, rushes at once upon him.
When the temptation comes in the shape of sudden anger and impetuous
passion, there is a threat as sudden to encounter it. When the crime is
revolved in the secret and guilty recesses of the mind--as when some
individual stands between the tempted man and the possession of a
fortune, or some other great object of desire--there is religious terror
as stealthy, as secret, as unconquerable, as the strongest desire that
takes possession of the human heart, to assist always at his
deliberations.
M. Zschokke's little treatise, to which we have alluded, contains the
usual, together with some unusual, arguments against the punishment of
death, and contributes also a novel substitute for it. He begins, in
true German manner, by explaining (_inter alia_) the difference between
reason and understanding; the exact distinction between man and the rest
of the animal creation; and some other metaphysical generalities, which,
fortunately, are not concerned with the business in hand. For, as no two
writers agree in their explanations, and as none succeeds in perfectly
satisfying either his reader or himself, it would be impossible, if such
preliminaries were first to be adjusted, ever to arrive at the
discussion itself. The work is written in letters, addressed to a young
prince; and, at the thirteenth letter--there are but sixteen in the
whole--he approaches his main question--"Nun denn es sei zur sache!"
"Now then to the matter." And first he protests that death is no
punishment at all. The venerable historian absolutely flies to such
aphorisms as were the delight of Seneca, to prove that death is no evil,
and can consequently be no punishment; although there are some who,
under the dominion of mere instinct, may deem it such. "The death," he
writes, "of the criminal is no punishment; but for him, as for every
other mortal, only the end of earthly troubles, cares, and sufferings.
In vain," he continues, "does the multitude of suicides show us daily
that death is no evil, and therefore no punishment; for the men who thus
abridge their days manifestly prefer death to the endurance of the evils
of life."
It has been said, that "he who can look at death starts at no shadows."
And certainly, reason on the matter how you will, and prove life to be
as worthless as you please, if a man can defy death, and solicit it,
there is no other punishment that can be effective. It would be all but
impossible to prevent a criminal, if so resolved, from laying violent
hands upon himself; and altogether impossible to prevent him from
contemplating suicide as his last resort in case of detection, and so
nullifying the threat of any other punishment. There is no hold whatever
on the man in whom the love of life, or the fear of death, is really
extinct. But we are far from thinking that Seneca and the Stoics have
yet made so deep an impression on mankind that there is a very general
indifference to death, especially to a death inflicted by others--the
ignominious sentence of the law.
Again, this author objects, as some others have done, to the punishment
of death, because it is incapable of an adjustment to the degrees of
guilt. What punishment is? Or how can any tribunal determine on degrees
of moral guilt? It is not a criminal, it is a crime, that the law
punishes. To determine between two thieves, which had the better motive,
which had the least _of thief in him_, is not the function of a judge,
nor could he perform it, if imposed upon him. It has been remarked by
those who have had wide opportunities of judging--and the annals of
criminal jurisprudence support the observation--that murderers, taken as
a class, are not, as men, the worst order of criminals. Some sudden
impulse, or some one obstinate desire, got the better of their reason;
or it might happen, that the motive for committing a great crime was
not of so dark a dye as that which often induces to one of less
turpitude. And yet neither our author, nor any one else, would hesitate
to accord to the crime of murder the very severest penalty that stands
upon the code.
But M. Zschokke's main argument against the reasonableness and justice
of death-punishment is this, that every man has an original
imprescriptible right, prior to, and in the face of all society--_to be
a man_--"mensch zu sein"--"to develope himself as man." Society may
limit the exercise of this right, but not annul it; may mutilate the man
as it thinks fit, but must leave so much of him behind as may bear the
name of man. What is to be said of such metaphysical vagaries as these?
If this pass for reasoning, the unlawfulness of imprisonment may be
proved in the same manner; one has but to assert that man has an _a
priori_ indefeasible right to the use of the limbs which nature has
given to him. But no man has any _right_ whatever, but under the implied
condition of performing corresponding _duties_. This individual, whom
the law will not any longer allow to develope his humanity, should, if
he had wished to develope himself further, have allowed the like liberty
to others.
But that which most remarkably distinguishes M. Zschokke's little
performance is the substitute for the punishment of death which it
suggests. We believe it was here that M. Sue derived an idea which
occupies so conspicuous a place in his _Mysteries of Paris_. That
substitute is _blindness_. "The blinded man," writes our author, "is an
eternal prisoner, without need of prison walls. He must envy other
culprits their chains--their darkest dungeons; for in the darkest
dungeons hope may penetrate, and _they_ may one day see the light again.
He must envy the dead, on whom the executioner has done his utmost; for
to him life itself has become one endless punishment. He is bound
without fetters--bound more securely than if he were locked to the oar
or welded to the rock. Every step, every movement, tells him of his
weakness and of his guilt. The living world around him--he has lost it
all; he retains only its sources of pain, and the unfading memory of his
own crime. Scoffed at by the unfeeling, pitied by some, by all
shunned--contempt and commiseration and scorn are the smarting scourges
to which he stands defenceless for the residue of his days."
A frightful punishment truly! But we are far from approving of it as a
substitute for death. In the first place, it is equally irrevocable; and
it is one, and perhaps the most cogent argument against
death-punishment, that it admits of no recall in case of error, no
remission or compensation in the event of sentence having been passed
upon an innocent man. Our author, indeed, seems to think otherwise; for
he reckons it amongst the advantages of this mode of punishment, that it
does admit of compensation if it has been unjustly inflicted. To us it
seems very doubtful whether any pleasures addressed to the remaining
senses of hearing, of touch, or of taste, can be said to compensate for
the loss of sight. Neither does blindness, any more than death, admit of
degree or apportionment. In this respect, _burning_ or the use of fire
as a punishment, which has been suggested, though not absolutely
advised, by Bentham, would have a decisive preference. "Fire," writes
that voluminous jurist and legislator, "may be employed as an instrument
of punishment without occasioning death. This punishment is variable in
its nature, through all the degrees of severity of which there can be
any need. It would be necessary carefully to determine, on the test of
the law, the part of the body which ought to be exposed to the action of
fire; the intensity of the fire; the time during which it ought to be
applied; and the paraphernalia to be employed to increase the terror of
the punishment. In order to render the description more striking, a
print might be annexed, in which the operation should be
represented."--(_Works_, vol. i. p. 407.)
What is still more to the point, the punishment of blinding is quite as
repugnant to those sentiments of humanity which are said to be outraged
by the depriving a fellow creature of his life. As we have before
intimated, the spectacle of pain inflicted is at all times an evil in
itself. Even the presence of those gloomy buildings, devoted to all the
wretched purposes of incarceration, is, we should say, a public
calamity. The more men see of misery, the more callous do they become to
it; the less effort do they make to relieve; the more ready are they to
inflict it. Punishments should be multiplied as little as possible. Very
slight offences had better be left to the correction of public opinion,
and very grave offences should be severely visited, as well to spare
punishment as to prevent crime. We at once admit that it is an evil--the
spectacle of putting a man to death. But this of putting out his eyes
is, in act, scarce less revolting, and the spectacle is perpetuated. The
public execution lasts his lifetime. There is something, too, from which
we recoil in associating what has hitherto been the most pitiful
affliction of humanity with the idea of punishment of crime. A blind man
walks amongst us the universally commiserated--and good need he has of
our commiseration; it would be a sore addition to his calamity to make
his condition one of suspected turpitude, and expose him to the hazard
of being classed with murderers.
With respect to that greater _severity_ of the punishment, on which our
author eloquently enlarges, the only severity which a legislature ought
to seek is that which is available in the shape of _threat_; and no
threat can be more effective than that of taking from a man his life,
since he can always, in his own imagination, commute any other
punishment into that. If it be true, on the one hand, that death is a
mere privation, and not to be compared, in real severity, to very many
of the positive afflictions of life; and if, on the other, it is still
the greatest threat which society can hold out--these two facts together
would go far to prove that it is the very best punishment which could be
devised.
Dismissing this exception of the punishment of death for the crime of
murder, _imprisonment_ at home or abroad, accompanied with hard labour,
or periods of solitary confinement, is the sole threat of any moment
which the law holds out against offenders; and it becomes, therefore, of
infinite importance to establish an effective prison discipline. We look
upon this simplification of our penal operations as an advantage; and we
are by no means disposed to favour those inventive gentlemen who would
devise new punishments, or revive old ones, for the purpose, it would
seem, of having a variety of inflictions corresponding to the variety of
offences. A well-regulated prison, where the severity of the taskwork,
the nature of the diet, the duration and the strictness of the
confinement, all admit of apportionment to the offence, seems to include
all that is desirable in this matter of punishment. Here, if any where,
can plans of reformation be combined with penal inflictions. Such plans
ought, by all means, to be encouraged; but they are not--whatever
Captain Maconochie, and other zealous reformers, say to the
contrary--the first and peculiar object for which a prison is designed.
Captain Maconochie was for some time superintendent of Norfolk Island. A
rough experience. But prison discipline must be much the same in its
elements, in whatever part of the world it is carried on. We are not
about to enter into the variety of questions connected with
transportation, or the management of penal colonies. Wherever
imprisonment or compulsory labour are to be undergone, the same class of
difficulties and dilemmas must arise; and we shall deal only with
Captain Maconochie's remarks, as they apply generally to all convicts,
whether transported or not.
It is quite curious to observe the unconscious pranks that men of sound
understandings, but not philosophically disciplined, may be led into,
when, from some favourite point of view, they suddenly rush into
generalities, and proclaim as reasoning what is the dictate of a
momentary sentiment. Captain Maconochie, desirous of enlisting our
sympathies in favour of his convicts, assimilates their condition to
that of the black slaves, whom the philanthropic efforts of Wilberforce,
and others, succeeded in emancipating. The parallel is--to say the
best--very surprising and unexpected. Convicts in the colonies stand in
the same predicament, with regard to society, as their fellow-culprits
at home; and the gallant Captain would hardly preach a crusade for the
liberation of all the prisoners in England--for all who are undergoing
the discipline of our houses of correction. To be compelled to labour
for another man's advantage, and at another man's will, because one is
"guilty of a darker skin," and to be compelled to the like taskwork
because one has committed burglary, are two very different things. Full
of this happy comparison, however, Captain Maconochie proceeds--"They
(the blacks) were thus, in the main, merry, virtuous, and contented
beings; they did not advance--this their condition as slaves
forbade--but neither did they recede; and whatever the influence of
their condition on their own character, it ended nearly with themselves;
they were subjects, not agents, and no one was made materially worse
through their means. In every one of these respects, convicts are
differently, and far more unfavourably, circumstanced. True, they have
sinned, which is often alleged as a reason for dealing with them more
harshly; _but who has not sinned? Who will venture to say, or would be
right if he did say, that, similarly born, educated, and tempted_, as
most of them have been, he would have stood where they have fallen? They
are our brothers in a much nearer sense than were the negroes." Now, if
language such as this means any thing, the convict is a most maltreated
person, and should not have been punished at all. It is really the duty
of sober sensible men to put their veto on such oratory as this; there
is too much of the same kind abroad. We must all of us be ready to
acknowledge, that if we had been "born, educated, and tempted," as many
of these felons, we too might have been felons. Does it follow that we
ought not to have received the punishment of felons? Is this sort of
_argumentum ad hominem_, which makes the crime in imagination our own,
to bribe us into an utterly ruinous indulgence towards it? Crime is not
punished on earth--as divines teach us it will be punished in heaven--on
a principle of retributive justice, and according to our moral deserts.
To prove that this is not the principle of judicial punishment, we have
only to call to mind that, whereas, in a moral point of view, the force
of temptation diminishes the guilt, men, in framing their laws,
invariably increase the punishment in proportion to the temptation. The
facility to commit a crime, is one great element in the temptation to
commit it; and this facility has been always considered (as in the case
of forgery) to call for a counterbalance in the severity of the penalty.
In matters of penal legislation, there are two currents of thought,
which must be always kept distinct. The one relates to the natural and
little cultivated feelings of mankind, which demand retaliation for
injuries committed--a vindictive or retributive justice. Here is found
the rude motive power by and on which legislation has to work; sometimes
shaping these feelings to its purposes, sometimes shaping its purposes
to them. The other current of ideas is purely legislative, purely
prospective, having for its sole end the well-being of society, and
looking on punishment; not as retributive, or vindictive, or as morally
due, but as a sad necessity for the preservation of order.
In reference to the latter and only legislative mode of thinking, how
extremely illogical does it appear this attempt to ward off the penal
blow from a guilty party, or to excite our commiseration for him on the
ground that we all share the same passions and frailties of that guilty
party! Why, if such passions and frailties were not general, there would
be little need of punishment. It is because they are general, that the
legislature is compelled to be so watchful and energetic. If to take the
object of desire from our neighbour were a rare propensity, an
extraordinary phenomenon, we might let the prison sink into happy ruin,
and a most cheerful desolation.
We have seen how the German, in his metaphysical manner, disposed of the
right of society to put one of its members to death; the Captain, though
no metaphysician, proves, in a manner quite as bold and singular, that
the state has really no right to inflict any punishment that is not of a
reformatory character. It is true he admits of punishment--could a man
of his experience do otherwise? But he admits it only as a part of his
_curative process_. It is to induce "submission and penitence." He can
so far blind himself by his love of theory, or rather his tenacity to
one point of view, that he seems to suppose, that _reform of the
criminal being the direct object_, he would commence his treatment by
penal inflictions. "As already observed, a fever must be reduced before
its ravages are sought to be repaired; a wound must be probed and
cleansed before it can be healed up." And this surgical instance seems
to have satisfied his mind, that the exacerbations consequent on
punishment are an indispensable preparation for a moral restoration. As
to the old-fashioned notion that punishment has for its legitimate and
primary object to deter others from offending, he denounces this, if
pursued as an independent aim, as a flagrant injustice; he regards such
criminals who are punished for this end only, as sacrifices cruelly
offered up for the benefit of the public.
"In the infancy of society," reasons Captain Maconochie, "and under
every form of pure despotism, the individual is nothing, and the
commonwealth, or its chief, every thing. But just as intelligence
and true knowledge of state policy extend, does this state of
things become reversed; and in England already, the maxim is become
almost universal, that private rights are never to be invaded
without compensation. In two departments only is there still a
systematic deviation from this rule in practice. Impressment, in
which the compensation made, though it has increased much of late
years, must still be considered inadequate--for otherwise the act
itself would be unnecessary; and the punishment of offenders with a
view to _example_ only, in which they have no concern, and to which
their individual interests are yet unhesitatingly sacrificed. In
both cases the same plea of state necessity is offered in
justification; but it will not do. As society advances, and
individuals become more sensible of their own worth, their claims
to regard above such abstractions become more and more
evident."--(_General Views_, &c., p. 11.)
We would modestly suggest that before this curious analogy can be made
complete, government ought to press for hanging as well as the sea
service. If the sheriff and his bailiffs sallied forth, and seized upon
some hapless wight, thrust the king's money into his hand, and thus
enlisted him into the hanging corps for the benefit of the community,
the resemblance would be perfect. But no one, not even the high-sheriff
himself, has the least desire to obtain a single recruit for this
forlorn service; the members of which force themselves in a most
unwelcome manner upon the state. Still less, if possible, does the
government desire to be at the expense of erecting large buildings, and
maintaining numerous garrisons of all species of felons. "Banishment of
offenders, with a view to example only, _in which they have no concern_,
and to which their individual interests are yet unhesitatingly
sacrificed!" Indeed, but they have! He who is punished for theft has
still his life to be preserved, and may one day have his property also
to be protected by the same law under which he is suffering. One can
imagine the strange effect it would produce upon the ignoble army of
martyrs which throng our jails, to be told that they were sacrifices to
society--victims whom the community was offering up, most unjustifiably,
on the altar of its own interests! At first, the idea would be a little
dim and mysterious; but, after a short time, the flattering nature of
the doctrine would doubtless be sufficient to insure its reception. They
would, thereupon, call in the jailer, and the chief spokesman of the
party would thus address him:--"We perceive, O jailer! that society is
consulting its own interests in our punishment, and not, as it is bound
to do, our especial benefit and advantage. As we have learned that
stripes and bondage are to be inflicted on no man but for his own good,
and as we are all agreed, after considerable experience, that we derive
no benefit whatever from them, and you, O jailer! must be satisfied
that, as medical treatment, they are worse than inefficacious, we
demand, in the name of justice and human reason, our immediate
dismissal."
To those who value no information but such as assumes the shape of
detail of facts, or can be reduced to figures, and exhibited in the
shape of statistical tables, we shall perhaps appear to be wasting time
in examining the mere errors of _reasoning_ on this important subject of
penal discipline. We think otherwise. We apprehend there is nothing more
necessary than to keep active and zealous men steady to first principles
in subjects of great general interest. We are not guilty of underrating
the value of statistical tables; albeit we have seen figures arrayed
against figures, as if there were two arithmetics, as if there were two
churches in the doctrines of addition and multiplication; but the truth
must be kept in view, that to read statistical tables aright, something
more is required than a knowledge of the rules of arithmetic. A few
sound principles, based on a knowledge of human nature, and the
elementary bonds of human society, may often preserve us from false
deductions, which seem to be the sure product of the array of figures
that are presented to us.
We intimated that Captain Maconochie's pamphlet contained what appeared
to us a valuable contribution towards a good prison discipline. That
contribution is simply--the commutation of _time_ of imprisonment for
quantity of _labour_ to be performed. The amount of work done by the
prisoner could be estimated by certain _marks_ awarded or reckoned to
him, and the duration of imprisonment measured by the number of those
marks to be earned, instead of a certain fixed number of months or
years. This is a very simple idea, and is all the better for its
simplicity. The punishment would be probably rendered more effective as
a threat, and the moral effect of the punishment, when inflicted, would
be much improved. A compulsion to labour (which becomes, in fact, a
compulsion of moral motive, as well as of sheer external control) may
lead to a permanent habit of industry. There would be all the difference
between the listless and disgustful labour of enforced time-work, and a
labour in part prompted by the hope of expediting the term of release.
An idle vagabond might thus be disciplined and trained into an
industrious workman.
We have no doubt that this principle has already been partially applied
in the management of our prisons, and perhaps in more instances than we
at all suspect; but that it has not yet been extensively applied, or
received the trial which it appears to merit, is certain--because such
an experiment must have been preceded by a very notorious and signal
alteration in our laws.
We should be doing an egregious injustice to Captain Maconochie if we
were to judge of him only by the instances we have given of his powers
of general reasoning. The perusal of his pamphlets has left in our mind
a strong impression of the manly character and practical ability of
their writer. If his abstract reasonings are sometimes perverse, we are
convinced that his practical good sense is such, that in the management
of any enterprise, he would in reality so order his proceedings, that,
whatever his pen might do, his conduct would contradict no sound
principle of expediency. If it were the object to reclaim a set of
felons or vagabonds, and fit them--say for the naval and military
service--we are persuaded that the task could not be confided to better
hands than those of the gallant Captain. During his residence at Norfolk
island, he seems to have obtained the esteem of even the worst of the
sad crew he had to discipline; and this, it is evident, without
sacrificing a jot of the duties of his station. He is plainly not the
man to make any boast of such a matter, or to feel too highly flattered
by it. "Instances of individual attachment to myself," he says, at the
conclusion of his pamphlet _On the Management of Transported Convicts_,
"I could multiply without number; but these, for obvious reasons, I
forbear to quote; and in truth they as often pained me as pleased me, by
being too deferential. It is a great and very common mistake, in
managing prisoners, to be too much gratified by mere obedience and
servility: duplicity is much encouraged by this; and, of two opposite
errors, it is better rather to overlook a little occasional
insubordination. I cannot refuse, however, to cite two traits, whose
character cannot be mistaken. I had a large garden within a few hundred
yards of the ticket-of-leave village at Cascade, where from 300 to 400
men lived, four to six in a hut, never locked up, nor under other guard
through the night than that of a police sentry, one of their own number.
The garden was by the road-side, very imperfectly fenced with open
paling, and fully stocked with choice fruit and vegetables, bananas,
pine-apples, grapes, melons, and others, which _to men on a salt ration_
must have offered a great temptation; these were constantly under view,
yet I scarcely ever lost any. And by a letter, received a few weeks ago,
I learn that five men, having picked up an old black silk handkerchief
that had belonged to me, have had their prayer books bound with it." [1]
The Captain's theoretical error is, that he too much confounds the
necessity of penal laws with the duty of public education. The duty of
the state to educate its subjects is undeniable; but, when criminals are
brought before it, this is not the duty which is then most prominent.
This is a duty which ought to have been performed before--it is a duty
which ought not to be forgotten then; but there is another function
which comes into operation, which is typified by the judge, not by the
schoolmaster.
We observe that Captain Maconochie confirms, from his own experience,
the opinion already expressed by many others upon the policy of solitary
confinement. For a short period the effect is good; but, if prolonged,
it leads either to stupid indifference or moroseness of temper, if it
does not conduct even to insanity. It is, manifestly, an expedient to be
cautiously used. We should, before any appeal to experience, and judging
only from the nature of the human mind, have confidently predicted this
result. And, indeed, has not the effect of solitary confinement been
long ago understood and powerfully described? In that delightful tale of
the Arabian Nights, where the poor fisherman draws up a jar from the
bottom of the sea, and, on opening it, gives escape to a confined spirit
or genie, this monster of ingratitude immediately draws a huge sabre,
with the intention of decapitating his deliverer. Some parley ensues;
and the genie explains that he is only about to fulfil a vow that he had
made while incarcerated in the jar--that, during the first thousand
years of his imprisonment--and, to an immortal genie, a thousand years
may reckon as about two calendar months with us--he promised to his
deliverer all imaginable blessings; but, during the second thousand
years, he vowed that he would _kill_ the man who should release him!
Could there possibly be a better illustration of the effect of solitary
confinement?
But on the peculiar modifications of prison discipline, it is not our
purpose here to enlarge. This must be reserved to some future occasion.
We must content ourselves with observing, that we have little confidence
in novelties, and little wish to prompt the invention of our legislators
in this direction. We are as little disposed to advocate the silent as
the solitary system. Such a demeanour as any reflective man would
naturally expect to find in a place of public correction, is all that we
should require to be preserved. All boisterous mirth, all obstreperous
laughter, all loud talking, would, by every efficient governor of such
an institution, be systematically repressed. The labours of such an
establishment should be conducted with stern military order. Every
inmate should feel himself under an irresistible domination, and that
obedience and submission are the only parts he has to enact. How easily
the strongest minds may be led astray when scope is given to invention
in this matter of penal discipline, may be seen in the example of Jeremy
Bentham himself. This celebrated man, whose cogitative faculty was
assuredly of the most vigorous description, but who had a mode of
developing it the most insufferably and needlessly prolix, would have
filled our prisons with inextinguishable laughter by the introduction of
certain "tragic masks," indicative of various crimes or passions, in
which the several offenders were to be occasionally paraded--a quaint
device, which would have given a carnival to our jails.
Our main purpose, in these somewhat fragmentary observations, was to
protest against the reasoning which would divest punishment of its
proper and distinctive character, which, spreading about weak and
effeminate scruples, would paralyse the arm which bears the sword of
justice. One writer would impugn the right of society to put its
arch-criminals to death; another controverts its right to inflict any
penalty whatever, which has not for its direct object the reformation of
the criminal. So, then, the offender who will not live with his
fellow-men on the only terms on which human fellowship can be
maintained, is to stand out and bandy logic with the community--with
mankind--and insist upon his individual imprescriptible rights. These _a
priori_ gentry would find it very difficult to draw any advantage from
their imprescriptible rights, except in a state of tolerable civil
government. Civil government is, at all events, the condition on which
depends the enjoyment of all individual rights; without which they are
but shadows and abstractions, if even intelligible abstractions. Let us
have no more, therefore, of an opposition between the rights of
individuals and the stern, imperative, expediencies of society. There
can be no such opposition. Is it not as if some particular wave of the
sea should assert a law of motion of its own, and think it injustice to
submit to the great tidal movements of the ocean?
* * * * *