Chapter IV.

THE MANNER AND PHILOSOPHY OF PUNISHMENT.

The various punishments which are inflicted upon our law breakers are

fines, imprisonment, flogging, and death.

=Fines= produce a very useful means of dealing with persons whose

offences show a tendency to crime rather than to actual criminality. In

many cases the self-respect of the offender has not been sacrificed, and

while under arrest the sense of shame is deeply aroused. The shock from

being brought face to face with the law is often sufficient in these

persons to check any further tendency towards crime. The imposition of a

fine will satisfy the claims of justice and inflict that degree of

punishment necessary to fix the idea of abhorrence towards crime in the

mind of the offender. In the case of boys charged with petty offences

fining is often a most valuable means of punishment. To dismiss with a

caution may lead to nothing; to imprison is invariably a most disastrous

course to pursue; to flog within a gaol may be too severe but to fine is

an excellent method. The parent has to pay the fine, and as the child's

offence is generally due to the want of parental control and discipline,

the punishment reaches right home and better control for the future

generally results. Where parental control is non-existent, and there

remains no possibility of creating it, other measures must be taken

which will supply a substitute for the discipline of home life.

In some case of theft, minor assault, disturbing the peace, and other

offences which indicate a momentary and not very serious lapse of

self-control, or perhaps a somewhat vague conception of the supremacy of

the law, fines serve all the purposes of justice. A four-fold

restitution for all damage done might be taken as a standard to be

increased or diminished in exceptional cases. In all these instances the

culprit should be made to pay the fine himself even though it should

require a fairly lengthy period in which to liquidate it. Section 16 of

The New Zealand Criminal Code provides that the Court may exercise its

own discretion in imposing a fine upon any person whose offence rendered

them liable to a term of imprisonment. There are many cases, however,

even of first offenders, in which fining is quite useless.

=Imprisonment.=--So much has been written describing the various prison

systems in vogue in different parts of the world that it is unnecessary

to do much more than briefly outline them here.

(1). The congregate system. In which the prisoners are associated

together by day or by night or by both. Were the object to convert the

prison into a school of crime, no better system could be devised. The

standard of the lowest is the standard which must prevail under the

congregate system.

(2). The solitary system. The extreme opposite of the congregate system.

The prisoners are allowed to have practically no communication with

anyone whomsoever. In some countries this system is made indescribably

cruel. At Santiago in Chili in one part of the prison the inmates are

employed upon useful work under most humane conditions, and yet in

another part of the very same building a most barbarous system exists.

Mr F. B. Ward (quoted in Penological and Preventive Principles)

describes what he saw in 1893:--"In this splendid model institution

there are noisome, slimy cells, where daylight never enters, in which

human beings are literally buried alive. Under the massive arches of

enormously thick walls, where even in the outside rooms perpetual

twilight reigns, are inner cells, two feet wide by six feet long, and

destitute of a single article of furniture. Until recently, those

confined in them were walled in, the bricks being cemented in places

over the living tomb. Now there is a thick iron door, which is securely

nailed up and then fastened all around with huge clamps, exactly as the

vaults are closed in Santiago Cemetery, and over all the great red seal

of the Government is placed--not to be removed until the man is dead, or

his sentence has expired. The tiny grated window is covered by several

thicknesses of closely-woven wire netting, making dense darkness inside,

so that the prisoners cannot tell night from day. There is no

ventilation except through this netting, and no opening whatever to

admit outside air into the tomb. Low down in the iron door, close to the

ground, is a tiny sliding panel a foot long by a few inches wide

arranged like a double drawer, so that food and water may be slipped in

on shallow pans and the refuse removed. Twice in every twenty-four hours

this panel is operated, and if the food remains untouched a given number

of days, it is known to a certainty that the man is dead, and only then

can the door be unsealed, unless his time is up. If the food is not

touched for two or three days no attention is paid to it, for the

prisoner may be shamming; but beyond a certain length of time he cannot

live without eating. Not the faintest sound nor glimmer of light

penetrates those awful walls. In the same clothes he wears on entering,

unwashed, uncombed, without even a blanket or handful of straw to lie

upon he languishes in sickness, lives or dies with no means of making

his condition known to those outside. He may count the lagging hours,

sleep, rave, curse, pray, long for death, dash his brains out, go mad if

he likes--nobody knows it. He is dead to the world and buried though

living. They told us that only one man has ever survived a year's

sentence there. Those that survive six months are almost invariably

drivelling idiots or raving maniacs."

It was under similar conditions to these that the assassin of King

Humbert of Italy was incarcerated. Such a system shows a cruel

vindictive rage towards the criminal. Terrible as the offender's crime

may be, society must deal calmly and not lose self-control or give such

an exhibition of its own criminal ferocity.

=The Separate System.=--Under which the prisoners are not allowed to

associate with each other, but receive frequent visits from gaolers,

warders, chaplains, and other persons who are likely to bring beneficial

influence to bear upon them. Each man has his own cell, in which he

sleeps and works. His exercise is conducted in such a manner as to

prevent contact with other prisoners. He is allowed books and given

daily instruction. Under this system perhaps the best results are

obtained.

=The Silent System.=--A system under which the prisoners associate with

one another but are forbidden to communicate. This system cannot be

strictly enforced, and as it converts trifling matters into serious

offences, it makes the prison life a state of petty persecution.

=The Combined System.=--A system which the prisoners are kept apart

during the night but work together during the day. This system has been

adopted in New Zealand, and in the following description of the value of

imprisonment it will be understood that it is to this system that

reference is made.

A man is sent to prison because he has proved himself unfit to be at

liberty. His attack upon society was evidence of this, and society

punishes him by taking away the liberty which he has thus abused. His

dread of the prison increases as he comes under the shadow of its grim

walls, and, once having passed within, a feeling of remorse and

desperation seizes him. Its intensity or weakness will depend upon his

temperament. He is soon told in the most emphatic manner that he is to

regard himself as a felon; that he is to live with felons as a felon and

observe the habits of a felon. He is given a uniform coarse in texture

clumsy and grotesque in appearance and branded over with the broad-arrow

and with his prison number. In this garb it is impossible for a man to

preserve his sense of self-respect. If he should not be amenable to the

prison discipline he may be held up to ridicule by being compelled to

wear a parti-coloured uniform. However can a man be expected to reform

who is held up to the ridicule of felons? It matters not from which

class of life he is drawn, what his age is, or the nature of his

offence, he is thrown into the company of the worst criminals in the

land. If he were a cultured man, or a man who had known no associates in

his crime, or if his aesthetic taste was considerably developed it

matters not; he must do the same work and mix in the same company as the

most ignorant and most brutal. To utterly disregard these qualities is

to ignore the wide-open channels along which the most powerful

reformative influences may be transmitted. If his recovery is to be

considered these are most substantial assets. They are, as it were, "the

general health" of the patient suffering from a local lesion. Yet our

prison system not only ignores them but patiently sets to work to

destroy them, as if their possession were an additional offence on the

part of the criminal. Prisoners who try to keep aloof from their

associates may often be made to suffer very considerably for it. Others,

craving for some association, soon fall in with men whom they would have

regarded, a few days previously, as impossible companions. The almost

entire absence of elevating influences makes it easy for the

concentrated power of evil to become irresistible. The gloom of the

prison rises, the fear of the law vanishes and the new born tendency to

crime becomes a confirmed habit. A man needs either a very strong will

indeed, or else to be supported by powerful social traditions to enable

him to resist the evil influences of prison life. A few men do resist

and maintain their sense of self-respect in spite of all indignities and

bad influences. Some sink as under a torture; some sink and are enticed

and absorbed into felony. These last will plan their future crimes while

they are serving their first sentence. Henceforth the prison is their

home.

What purpose is thus served? Why should a man who has lost self-respect

be continually reminded of it? If a man is diseased he is not placed

amongst filthy conditions and the emblems of sickness and death crowded

upon him. His removal from all unhealthy surroundings is the first

essential necessary for his recovery, and the same should be observed

with the criminal. He should be entirely removed from criminal

surroundings and efforts made to eradicate the criminality which has

expressed itself. Society has not the right to degrade a man, much less

to school him in crime. If he prove absolutely incorrigible (a very

difficult matter to ascertain) he should be banished from society for

all time either by life-long imprisonment or by death. If not, the

carrying out of his punishment must be performed with a very sacred

sense of responsibility. All manner of means are taken to relieve and

cure the physically sick; much greater surely should be the means

employed to heal the morally and socially sick.

Another matter wherein our prison system might be justly criticised is

the scale of diet provided for the prisoners. No one asks that they

should be given luxuries, but it might at least be recognised even in

prison that one man's food is another man's poison, that one fattens

where another starves, and that variety is essential to good health. A

prisoner who was serving a very long sentence once said to the author,

"fancy having the same dinner every day of your life." Let one fancy it,

boiled beef every day except Sunday, when roast beef is provided. The

same meal every day, the same clothes to wear every day and all day, and

the same routine to go through. What wonder is it that in the confirmed

criminal many faculties appear to have atrophied. They have obeyed a law

of nature. The popular comment is no doubt--"what else do you expect?

They deserve it all, they have brought it upon themselves." We expect

that our criminals should at least be treated like the by-products of

our mills and factories, i.e. made the most of. Bitter prejudices must

give way to the dictates of reason and humanity.

Practically the "combined system" produces no good results. It satisfies

neither justice, humanity, nor economy. Neither is it efficient to

afford protection to society. It satisfies prejudice and vengeance

alone. The only system of imprisonment which is of any value and which

the State ought to consider is one which converts the gaol in every

essential into a "crime-hospital."

Concerning life imprisonment much apprehension exists in the public

mind. The prevailing idea is that this sentence implies incarceration

for a period of twenty years. This is due perhaps to the fact that in

England the sentences of "lifers" are reconsidered at the end of that

period, and in the majority of cases a pardon is granted. The New

Zealand prison regulations contain this section (116) "No rule for the

remission of life sentences will be laid down. Such sentences are passed

on persons guilty of the very gravest offences; and the Governor will

only extend the royal prerogative of mercy to such persons in

exceptional cases." Under certain conditions life imprisonment is the

only way of dealing with criminals who refuse to reform. Those

conditions do not exist in our New Zealand prisons, and a life sentence

served within their walls is the most cruel form of punishment our laws

allow. The prisoner enters the gaol with a long, dark, hopeless future

before him. As the years roll by not one ray of light brightens his lot.

He can never better himself. He suffers, he is meant to suffer, the loss

of all he holds dear (and even a murderer holds some things dear). This

absolute loss, this complete severance of all ties, produces a most

agonising mental state and afflicts the poor wretch with untold horrors.

He is made to drag out an existence under most unnatural conditions,

conditions in which every effort he makes towards self-improvement is a

useless one, every aspiration is routed, the natural affections crave in

vain for an object to fasten upon, and where an artificial atavistic

process is set in motion so powerful as to defy the resistance of all in

time. This is no imaginary picture, a man is a man, and one of the

cruellest tortures to submit him to is to deprive him absolutely of hope

and make good his evil because it requires an effort which is useless,

and evil his good because it is easier and costs the loss of nothing.

Perhaps the majority of lifers are those whose sentences have been

commuted from the death penalty. Such a sentence is in reality the death

penalty carried out under slow process extending over many years.

Gradually remorse and despair do their work upon the natural instincts,

the mind and the body. The man becomes brutalised, insane and dies. An

exception here and there may be pointed out; but given twenty men of

same age and good health, and sentence ten to twenty years, and ten to

life imprisonment, and the chances are that (under reasonable

conditions) the ten with the defined sentence will survive it, whereas

of the lifers the majority will be insane within twelve years. The

following testimony will, however, be of greater weight:--

The Directors of the State Prison in Wisconsin in their report for 1881

add:--

"The condition of most of our life prisoners is deplorable in the last

degree. Not a few of them are hopelessly insane; but insanity, even,

brings them no surcease of sorrow. However wild their delusions may be

on other subjects, they never fail to appreciate the fact that they are

prisoners. Others, not yet classed as insane, as year by year goes by,

give only too conclusive evidence that reason is becoming unsettled. The

terribleness of a life sentence must be seen to be appreciated; seen,

too, not for a day or a week, but for a term of years. Quite a number of

young men have been committed to this prison in recent years under

sentence for life. Past experience leads us to expect that some of them

will become insane in less than ten years; and all of them, who live, in

less than twenty. Many of them will, doubtless, live much longer than

twenty years, strong and vigorous in body perhaps, but complete wrecks

in mind. May it, therefore, not be worthy of legislative consideration

whether life sentences should not be abolished and long but definite

terms substituted, and thus leave some faint glimmer of hope even for

the greatest criminals?"

Sir E. Du Cane stated in 1878 before the Royal Commission on Penal

Servitude Acts:--

"I myself do not think much of life sentences at all. I would rather

have a long fixed term. I think all the effect on the public outside

would be gained by a shorter period."

Mr W. Tallack, late Secretary of the Howard Association, writes in his

"Penelogical and Preventive principles":--

"Of life imprisonment it may be conclusively pronounced very bad in even

the best form of it. Years of enquiry and observation have increasingly

forced this conviction upon the writer.... A fixed limit of twenty years

would greatly aid the discipline of its subjects. And what is of more

importance so far as the public are concerned, it would, in most cases,

avail to practically incapacitate or effectually deter the persons who

pass through it from any repetition of their crime. The mere natural

operation of age, decay, and disease would tend towards this result; and

not only so, but it would, in a considerable proportion of cases, render

the limit of twenty years a virtual sentence in perpetuity by the

intervention of death. But meanwhile the elements of hope and other

desirable influences would be largely present, notwithstanding."

To say the least of it our criminals have a claim for humane treatment,

and no sentence should have a greater duration than twenty years. The

term also should be fixed when the sentence is imposed.

=Flogging.=--This is an extremely unpopular form of punishment, owing to

its abuse in the old convict stations and in the army and navy. Yet

there is a great deal to be said in its favour. In 1898 the Howard

Association instituted an enquiry among the most competent authorities

as to what were the best methods of dealing with juvenile offenders.

Nearly 40 replies were sent in answer to their circular of enquiry, and

with but one or two exceptions these replies advocated whipping as the

most expedient method. The Chief Constable of Liverpool

stated:--"Whipping has been found a most efficient and HUMANE

punishment. During the last FIVE YEARS 489 boys were once

whipped. Of these, only 135 have been again convicted. Of the 135, 44

were whipped for the second time. Of the 44 only 10 were convicted a

third time, and 2 only for a fourth time. No other punishment can show

such a record...."

Our Criminal Code describes a whipping as being a punishment of not more

than 25 strokes with the cat-o'-nine-tails inflicted upon a person of

not more than 16 years of age. A flogging is limited to not more than 50

strokes and not less than 25 inflicted upon a person of over 16 years.

Three floggings at intervals for one offence is the maximum amount of

castigation allowed.

A description of the "cat" may not be out of place. The handle is round

and of uniform diameter of one inch. It is about 30 inches in length and

is light as cork. The "tails" (nine in number) are made of cord similar

to fishing cord, about an eighth of an inch in diameter and 33 inches in

length. In each tail a strand is taken out, wound round and put back,

thus making a bob. There are 27 of these bobs in all. A flogging with

such an instrument would no doubt be very severe, but it need not draw

blood nor leave marks for all time. A flogging properly administered

should produce sharp stinging pain and leave no bad results whatever.

Then it becomes a very useful punishment to use upon such men as those

whose crimes are characterised by cruelty. Men who violate, torture, or

frighten women, who are cruel to children or take advantage of the weak,

imbecile or defenceless might well be punished with a flogging. In fact

it is questionable whether any punishment is so effective. These men are

cowards one and all; they do not dread the lazy life of the prison, but

a flogging has great terrors for them, and its moral value is

considerable. In bygone years men who were flogged were often worse than

before. The flogging had demoralised them. These floggings were,

however, shockingly cruel. Nothing is to be admitted but the sharp

swishing and this, when properly carried out, is totally without any

objectionable feature.

There seems no necessity to combine a flogging and a long term of

imprisonment under one sentence. The maximum punishment of three

floggings might be given within a period of two months, and the culprit

then in most cases discharged. As to the advisability of ordering more

than one flogging a great deal might be said. Fifty lashes and the man

discharged within a week would be sufficient for the majority of cases.

For a very brutal crime or for a second offence of the same nature, a

second flogging after a period of days might be thought necessary. The

very greatest care, however, must be exercised in the administration of

this punishment. The crimes of brutality rightly arouse the indignation

of the public, but there is no need to show a brute that society can be

a greater brute than what he is. Being a brute, leniency invariably

fails, but unimpressionable to these methods as his moral and humane

instincts are, his skin remains sensitive, and through it his instincts

may be appealed to and quickened. Flogging makes him consider that the

practice of brutality is in direct variance to his own personal

interests and comfort. From this he may be led to moralise further.

Gangs of boys who are becoming a nuisance to the neighbourhood they

infest are quickly broken up if their ring-leader is treated to a dozen

strokes that he will not feel inclined to boast about. The mercifulness

of this punishment is seen in its power in thus effectively stopping the

tendency to crime. Larrikins, unnatural husbands and fathers, brutes and

torturers, cattle maimers and stack burners, all see their personal

interests lying in a very different direction to that which leads to the

"cat."

=Capital Punishment.=--The authority to take the life of a fellow-man is

based on God's word to Noah, "whoso sheddeth man's blood by man shall

his blood be shed;" and upon the abstract idea of justice "a life for a

life." These words in no sense contain a command to us of this century

to execute all murderers without exception. For the present state of

civilisation a new principle has been evolved which is, that when a man

shows himself to be unchangeably hostile to society then his life may be

forfeited. As the methods of dealing with criminals improve so the word

LIBERTY is being substituted for the word LIFE. The sin on the

man's soul may be left to God; all that men has to deal with is his

anti-social attitude. If impossible to change this attitude then either

death or life imprisonment must result. This very question of

possibility is so uncertain that few modern criminologists care to

adjudicate, and most regard the death sentence as anticipating too much.

Life-imprisonment, under the highest moral influences, becomes life-long

by and only by the continued resistance of the criminal. It is not the

objectionable form of punishment previously described for it encourages

the man to put forth his best effort to improve, and substantially

rewards these efforts, even to granting him his liberty if he persevere

with them. Punishment by death is becoming more and more unpopular. The

dislike of juries to bring in a verdict of "guilty" in a murder case is

sufficient testimony to this. In the crowds who sign petitions for the

reprieve of the condemned, the hysterical element is too prominent to

make any other estimate possible. But the reaction is steady, and it

will not be long before capital punishment becomes a thing of the past.

To abolish it before a suitable substitute were provided would be

mistake.

Gradually society is awakening to the fact that the condition of the

criminal ought to be ameliorated, and that there can be no real

amelioration which does not make definite efforts for the prisoner's

reform. The aim should be to assist every man to recover by his own

effort the place in society from which he has fallen. No man is

incapable of improvement, and under a wise systematic discipline most

men do improve. A remarkable witness is found in the experience of Dr

Browning who was engaged as Surgeon-superintendent of convict ships

between 1831 and 1848. Of one voyage from Norfolk Island to Tasmania he

was in charge of 346 "old hands." These men had agreed to take terrible

revenge upon some of their comrades who had been employed as constables

over the others. Under Dr Browning's instruction and discipline their

purpose was abandoned. He landed the men in Tasmania without having

inflicted a single punishment upon the voyage. He remarks:--"The men

were given to me in double irons; I debarked them without an iron

clanking among them. I am told that this is the first and only instance

of convicts removed from Norfolk Island having had their fetters struck

off during the voyage, and being landed totally unfettered. They were

almost uniformly double-cross-ironed and chained down to the deck,

everybody being afraid of them. I was among them at all hours and the

prison doors were never once shut during the day. To God be all the

glory." Three Governors of Tasmania expressed their high opinion of Dr

Browning's system and of its subsequent effects upon their behaviour.

(Vide "Christianity amongst Prisoners." Howard Ass.:)

In the famous Dartmoor prison and at Borstal in Kent experiments are

being made to secure a greater number of reformations among the younger

convicts. It is too early to estimate the value of the systems being

tried, but they are being watched with much hope and expectation. In

America there is a decided tendency to substitute State reformatories

for prisons, especially in the case of the young. The Elmira Reformatory

has been established for more than a quarter of a century, and its

claims to have reformed 82 per cent. of the men committed to it has been

upheld by the special enquiry instituted in 1890.

If these different systems were more closely studied there would result

a great awakening as to the possibilities of the criminal, and society

would discover that its best interests were served by reforming its

offenders and making them moral and industrious servants of the State,

instead of by committing them to institutions where they were brought

into contact with consecrated villainy and where the unwholesome

influence is calculated to confirm them in criminal habits and make

them a constant menace and expense to the community. That our criminal

population is on the increase, and that the proportion of recidivists

grows larger every year, is scarcely to be wondered at in the midst of

such influences. Notwithstanding all that has been done to improve the

state of prisons from what they were even fifty years ago, yet the motto

"once a criminal always a criminal" is often too sadly true. The report

of the English commissioners of prisons shows that amongst those who

have been convicted during the year 1902, 51.9 per cent. of the men and

70.6 per cent. of the women had been previously convicted. In the past

these results were regarded as inevitable. Now they are regarded with

much disquietude. Formerly they were supposed to point to a defect in

the criminal, now they are understood to prove a defect in the penal

system. The reason for this defect lies in having regarded certain

objects as primary which are in reality only secondary. These objects

have been defined to be the deterrence of crime by the example of

punishing criminals; the repression of crime by the infliction of

punishment, and the protection of society as a consequence. The

deterrent value of the penal system has been greatly reduced by the

small amount of dread which it excites in the criminally disposed. The

representative value is of a minus quantity. Crime is assisted more than

it is crippled. The protection of society is secured only during the

period of incarceration. At the end of that period the criminal must be

discharged and he goes forth often a more skilful criminal than before

and with a vow to take vengeance upon society.

Regarding these objects as secondary the reformation of the offender has

been acknowledged as primary by criminologists, and they turned their

attention to study the criminal pathologically, to enquire into the

causes of crime and also to make trial of the best methods for securing

reformation. "Punishment the principle and reformation the incident,"

was the theory of the old school. The New school reverses the order to

"Reformation the principle and punishment the incident." Obviously this

course renounces the old principle of retaliation and vengeance and

embraces that indicated by Christ in his precept "bear ye one another's

burdens."

=The Philosophy of Punishment.=--The threatening attitude of the

criminal towards the peace and welfare of society makes it an obvious

necessity that society should protect itself against him, otherwise he

would soon master the situation and reduce social order to barbarism.

What are the steps which it must take? It must first remember that its

right to punish is not an inherent, but a delegated one. Though its

powers are sovereign in the sense that there is no appeal from them, yet

they must not be exercised in an arbitrary way. So far as there is a

capacity for the realisation of responsibility to God so far must that

responsibility be observed. Where this responsibility is disregarded,

society immediately becomes the greater criminal itself even though its

deeds may be done in the name of the majority of its members. As history

is not without examples of this abuse of a sacred trust neither is it

without instances of the Divine interference expressed in the

destruction of a community which had offended after this manner. This

responsibility must be acknowledged firstly--in the end to be attained;

and, secondly or subsequently--in the means by which it is attained. We

are generally informed that our penal systems exist for the purpose of

repressing crime, and that punishment is thus inflicted upon the

criminal in order that others may be deterred from following his

example. Reformation is sometimes suggested. The public, however,

concerns itself very little about its criminals and much less about the

objects which its penal system is supposed to secure for it. The

attitude of the general public towards the criminal is undoubtedly a

vindictive one. His sentence is discussed from this point of view only,

viz.:--will the suffering that he will have to undergo be sufficient to

accord with the enormity of the crime he committed? The end which is

understood is simply suffering, expiatory suffering; suffering which

neither man nor society has any right whatever to inflict upon a human

being. The old principle of an eye for an eye, while in accord with

abstract justice, was often made the occasion for abuse, and the largely

prevailing conception of justice amongst us to-day is precisely the

abuse of that same principle. Society does well in returning upon its

criminals the consequences of their acts, but the consequences should be

a natural return and not an artificial one. The criminal should see that

by his attack upon society he is excluded from all the benefits of its

system. He has isolated himself and this isolation is of itself

miserable, and will, if persisted in, become intolerable. Its final

state is Hell, a state in which society is destroyed while the social

instinct remains and craves in its unquenched agony. It is perfectly

right to show the wrong-doer the ultimate end of his chosen course, but

there is no warrant for the strenuous effort which is made to force him

towards it. A criminal's punishment should be made purgatorial and not

internal. The old penology regarded him as a hopeless individual and

proceeded with its hellish tortures without undue delay. Beneath its

system no reforms were possible, and the fact that none were ever made,

was pointed to in order to justify its horrors. Society took no interest

in them whatever while they were being pushed lower and lower down the

social scale, but met them at the lowest steps, and, halter in hand,

gravely professed the utmost concern in their future and eternal

welfare.

So far, society has failed to recognise the end of the punishment it is

entitled to impose. In the words of Dimitri Drill, a Moscow publicist,

the new penology expresses that it "renounces entirely the law of

retaliation as end, principle, or basis of all judicial punishment. The

basis and purpose of punishment is the necessity of protecting society

against the evil consequences of crime either by the moral reclamation

of the criminal or by his separation from society; punishment is not to

satisfy vengeance." We must not jump to the hasty conclusion that herein

is meant that the criminal must be treated very gently and coaxed back

to more virtuous paths. What is meant is that his punishment should be

made purgatorial and not infernal. The process of reclamation is

accompanied by far sharper pains than those which are expiatory, but

they are the pains of a healing surgery and not those of a soul

destroying brutality. Where the means for reclamation fail then

separation from society is advocated. Separation in the midst of

influences which would always tend to awaken the desire to reform and

which would give immediate assistance to that desire when awakened.

Thus the recognition of this fact that the authority to punish offenders

against its law has been, by God, delegated to the social institution,

brings with it a recognition of the responsibility which accompanies

such authority.

In primitive times most offences were punished by the death penalty, not

as a vindictive measure but because the offender was hopeless and

society helpless. That is, the social state being of a very simple

order, any infraction of its laws would declare the offender a most

pronounced criminal, bitterly hostile to society and irreclaimable by

such social machinery as then existed. The death penalty when inflicted

must ever be so regarded. Not as a life for a life but as the punishment

inflicted upon one who has by his own conduct given complete evidence

that his recovery to the social state is impossible. In this century of

civilisation it is incumbent to look upon the criminal as being in a

measure a by-product of society and to deal with him accordingly.

Outside of society crime is impossible, therefore society accounts for

crime and is also in a measure responsible for it. To this measure

exactly (although the measure itself can never be determined with

exactitude) is the criminal by-product. In a large measure he is

responsible (entire responsibility is conceivable), and it is this sense

of responsibility which makes it possible to carry out his treatment.

Large industries find that their by-products are an important asset and

to disregard them would be ruinous. Mr Frazer in his book "America at

Work" states that the expenses of the meat-packers of Chicago for 1901

amounted to L150,244,848. The sales of meat realised L124,263,998, and

yet a net profit of L6,767,638 resulted. What appears to be a paradox is

explained by the fact that a sum of no less than L32,748,488 resulted

from the sale of by-products. All the waste must be turned to dollars.

Commercial advance has certainly out-stripped social advance, and

apparently for the reason that whereas in commerce a pig's tail is

regarded as an important asset, in our social system the criminal and

the weakling are regarded as a heavy liability. When the point of view

is changed society will advance more rapidly. So, too, society finds

that it must utilise its by-products and to devise means which it can

bring to bear upon the criminal, so as to bring him to a state of

usefulness. The enormity of the crime and the degree of criminality are

alike impossible to estimate, therefore it is also impossible to define

a punishment which makes an attempt to recognise any of these qualities.

It is, however, quite possible to determine within very fair limits the

continuance of the criminal habits, also the value from a reformatory

point of view, of various social influences, and further there exists

the power to apply these influences. To sum up--society possesses within

itself the power to reform its criminals (to utilise its by-products)

and to determine when they have been reformed.

Separation from society is rendered absolutely necessary by the

criminal's own behaviour, if by his behaviour he shows that he is not

capable of using freedom profitably. But if his separation is to serve

any real purpose whatever it must be accompanied by an educational

process which will work him back to that point where he left the social

track and then so propel him forward that he may recover his lost

ground, and when restored to society be enabled to identify himself with

its progressive system.

So far our penal system is a mistake. Whatever it may be theoretically,

practically it is only vindictive. Its failure has caused some to

despair and others to reflect.

A Plea for the Criminal Being a reply to Dr. Chapple's work: 'The Fertility of the Unfit', and an Attempt to explain the leading principles of Criminological and Reformatory Science · 第 4 / 10 章