Not Guilty: A Defence of the Bottom Dog

Although the prisoner ought not to be punished, it is imperative that he be restrained.

Being what he is: being what society has made him, he is not fit to be at large.

We must defend ourselves against him. We must protect our children from him, even although we have failed to protect other children against society.

I ask the jury for a verdict in the prisoner's favour. I leave the prisoner to their justice and to their reason. That is my case.

CHAPTER THIRTEEN – THE FAILURE OF PUNISHMENT

DOES it do a man any good to hang him? Does it do us any good to hang him? Is any human being in the wide world edified or bettered when a man is hanged? Is it any use hanging men?

That it is unjust to hang a man we have seen. But is it any use?

There is a certain school of moralists who are angered and alarmed by the mere suggestion that men should cease to blame and punish each other. They protest that virtue would die out and morality become a mockery if we ceased to scold, and whip, and execute each other. They seem to believe that injustice and ferocity are the best exemplars of justice and human kindness.

Dr. Aked, minister of Pembroke Chapel, Liverpool, declaiming against what he called "this preposterous notion of moral irresponsibility," declared that "it is the doctrine of every coward, of every cur, of every thief who ever pilfered from his master's till, of every seducer and traitor the world has seen." I whisper the name of Torquemada, and pass on.

Dr. Aked, supposing, for the sake of illustration, that he who has been a bad man, said:

If, in the mercy of God, the day comes when I see myself as I am, when there is no more shuffling, when to myself Myself is compelled, even to the teeth and forehead of my faults, to give in evidence – if such a day comes, no juggling with words, no nonsense about not knowing any better or being driven by education upon organisation, by environment acting on heredity, will serve to conceal from my soul the hideous view of its own guilt.

And yet Dr. Aked is a minister of the Christian religion, and a professed follower of Christ, who said of his murderers, "Father forgive them, for they know not what they do."

I might imitate Dr. Aked, and denounce the idea that punishment makes men virtuous and docile as the idea of every tyrant, of every religious persecutor, of every wife-beater, of every martinet, of every bully and brute the world has ever seen. But I prefer to look calmly and sensibly at the evidence.

That mighty moral ruler, King Henry VIII., during his reign did, according to the author of Elizabethan England, hang up seventy-two thousand thieves, rogues, and vagabonds.

Now, Sir Thomas More, who was one of the finest men England ever bred, and was Lord High Chancellor under Henry VIII., has put it upon record, in his great and noble work, Utopia, that these severe punishments were not only unjust, but ineffectual.

I will quote from Sir Thomas:

One day when I was dining with him (Cardinal Archbishop Morton) there happened to be at table one of the English lawyers, who took occasion to run out in a high commendation of the severe execution of justice upon thieves, who, as he said: were then hanged so fast, that there were sometimes twenty on one gibbet; and upon that he said he could not wonder enough how it came to pass, that since so few escaped, there were yet so many thieves left who were still robbing in all places.

Upon this, I, who took the boldness to speak freely before the Cardinal, said there was no reason to wonder at the matter, since this way of punishing thieves was neither just in itself, nor good for the public; for as the severity was too great, so the remedy was not effectual; simple theft not being so great a crime that it ought to cost a man his life; and no punishment, how severe soever, being able to restrain those from robbing, who can find out no other way of livelihood; and in this, said I, not only you in England, but a great part of the world, imitate some ill masters that are readier to chastise their scholars than to teach them. There are dreadful punishments enacted against thieves, but it were much better to make such good provisions by which every man might be put in a method how to live, and so be preserved from the fatal necessity of stealing, and dying for it… If you do not find a remedy to these evils, it is a vain thing to boast of your severity of punishing theft; which, though it may have the appearance of justice, yet in itself is neither just nor convenient; for if you suffer your people to be ill-educated, and their manners to be corrupted from their infancy, and then punish them for those crimes to which their first education disposed them, what else is to be concluded from this, but that you first make thieves, and then punish them?

In confirmation of the statement of Henry the Eighth's Lord Chancellor, we have the evidence of Harrison, that after these 72,000 executions of Henry, there were more thieves than ever in the next reign.

Harrison, who wrote in the reign of Elizabeth, says of the "rogues and vagabonds": "the punishment that is ordained for this kind of people is very sharp, and yet it cannot restrain them from their gadding."

In that day any one convicted, "on the testimony of two honest and credible witnesses," of being a "rogue," "he is then immediately adjudged to be grievously whipped, and burned through the gristle of the right ear, with a hot iron of the compass of an inch about." Amongst the "rogues" were included actors, jugglers, fencers, minstrels, and tinkers!

Harrison toasts that our laws against felons were more humane than those of the Continent. Let us consider the leniency of Elizabeth's day. A woman who poisoned her husband was burnt alive. Other poisoners were boiled alive, or scalded to death in "seething water or lead." Heretics and witches were burnt alive. Murderers were hanged alive in chains. Harrison adds: "We have use neither of the wheel nor of the bar as in other countries; but when wilful manslaughter is perpetrated, besides hanging, the offender hath his right hand commonly stricken off, before or near the place where the act was done, after which he is led forth to the place of execution and there put to death according to the law."

For treason men were "hanged, drawn, and quartered."

For felony, which was anything from highway robbery to theft of a piece of bread, men, women, and children were hanged. There were over 250 offences for which the penalty was death.

For "speaking sedition against a magistrate" the offender had both his ears cut off.

If a prisoner refused to plead he was pressed to death under heavy weights.

Harrison says that "there is not one year" in which three or four hundred "rogues" are not "eaten up by the gallows." And then he goes on to remark that so many are the idle rogues, that "except some better order be taken, or the laws already made be better executed, such as dwell in uplandish towns and little villages shall live but in small safety or rest."

A hundred years ago there were over two hundred offences for which the punishment was death. Boys and girls were hanged for theft. Mr. Collinson, in Facts about Floggings, says that in 1816 there were at one time over fifty prisoners in England waiting to be hanged, and that one of them was a child of tender years. Mr. Collinson says:

The inefficiency and brutality of all this torture and bloodshed became obvious to the people, through the propaganda of a few daring and enlightened reformers, and it was swept away.

But let us come nearer home. About a dozen years ago the late Mr. Hopwood, K.C., Recorder of Liverpool, was good enough to give me his opinions on the subject of harsh and lenient punishment. Mr. Hopwood said:

I was first convinced of the uselessness of harsh sentences by attendance at two courts of sessions about thirty-five years ago. The two courts were those of Manchester and Salford – towns very similar as to population and conditions of life. In Salford the sentences were uniformly lenient. In Manchester they were uniformly severe. People said Manchester would be purged of crime; that all the criminals would flock to Salford. It was not so. The state of things continued for some years, and caused no increase of crime in the one, nor decrease of crime in the other town. Hence it becomes evident that a great deal of useless punishment was inflicted in Manchester. I was a young barrister at the time, and I took the lesson to heart.

Mr. Hopwood only claimed a negative result. He said: "I do not say I have reduced crime, but only that I have reduced punishment without increasing crime. For instance, I claim that during my six years at this court I have saved three thousand years of imprisonment."

When I remarked "that saved a great waste of money," he answered that it was "a great saving of humanity." He claimed that life and property were at least as secure under a clement judge as under a cruel one, and that his system saved much suffering and shame, not only to the prisoners, but also to those dependent upon them. He said that very often his treatment had a good effect upon the prisoners: "Do you know, often they are ashamed to come back."

Mr. Hopwood told me that at first he met with strong opposition, but that his example had such an effect that the local magistrates had come "to give six or ten months' imprisonment in cases where formerly the offenders would have got seven years." Asked whether his leniency had caused criminals to flock to Liverpool, Mr. Hopwood answered, "Not at all"; and his denial was backed by the statement of the Chief Constable that "crime was decreasing to an appreciable extent."

Mr. Hopwood told me he would like to release one-third of those men then in prison, and, he added, "another third ought never to have gone there." Asked what that meant, he said that one-third of the prisoners were innocent. My own observation, in the police-courts afterwards, convinced me that he was quite right. Finally, after showing me that the boasted cure of garrotting by "the cat" was a fiction, "there never was a garrotter flogged," Mr. Hopwood asked me to go and see some of our prisons, remarking, gravely:

The prison system is cruel and vile. The prisoners are starved, tortured, and degraded. The system should be altered at once. It is inhumanly severe upon the guilty, and, in my opinion, a good third of those in our gaols are not guilty.

Dr. James Devon, medical officer at Glasgow Prison, told the Royal Philosophical Society in that city, in 1904, that "with milder methods of repression we have not more, but less, crime: and certainly much less brutality."

Dr. Hamilton D. Wey, of Elmira Reformatory, 'Elmira, N. Y., says:

"The time will come when every punitive institution in the world will be destroyed, and be replaced by hospitals, schools, workshops, and reformatories."

Dr. Lydston, professor of criminal anthropology, writes as follows:

"Try to reform your man, try to purify and elevate his soul, and if he does not come to time, lock him up or hang him." This has been the war-cry of the average reformer through all the ages. "Make a healthy man of your criminal, or prospective criminal, give him a sound, well-developed brain to think with, and rich, clean blood to feed it upon, and an opportunity to earn an honest living – then preach to him if you like." This is the fundamental principle of the scientific criminologist. Which is the more rational?

Havelock Ellis says in his work on "the criminal," "Flogging is objectionable, because it is ineffectual, and because it brutalises and degrades those on whom it is inflicted, those who inflict it, and those who come within the radius of its influence."

The Recorder of Liverpool told me that millions were wasted upon prisons which ought to be spent upon detection. "Make detection swift and certain," said he, "and crime will cease. No one will steal if he is sure he will be caught every time."

This is proved by the Revenue service. Penalties did not stop smuggling; but it has now become almost impossible to run a cargo: the coast is so closely guarded.

Dr. Lydston, in The Diseases of Society, says:

The prospective criminal once born, what does society do to prevent his becoming a criminal? Practically nothing… What is the remedy at present in vogue? Society punishes the vicious child after a criminal act has been committed, and sends the diseased one to the hospital to be supported by the public, after he has become helpless. Even in this, the twentieth century, the child who has committed his first offence is in most communities thrown by the authorities into contact with older and more hardened criminals – to have his criminal education completed. The same fate is meted out to the adult "first offender." We have millions for sectarian universities, millions for foreign missions, but few dollars for the redemption of children of vicious propensities or corrupting opportunities, who are the product of our own vicious social system. Every penal institution, every expensive process of criminal law, is a monument to the stupidity and wastefulness of society – and expenditure of money and energy to cure a disease that might be largely prevented, and more logically treated where not prevented.

Lombroso, the great Italian criminologist, said, in 1901:

There are few who understand that there is anything else for us to do, to protect ourselves from crime, except to inflict punishments that are often only new crimes, and that are almost always the source of new crimes.

TO WHAT DOES ALL THIS EVIDENCE TEND?

From the day of Sir Thomas More to the present hour, it has been claimed by wise and experienced men that punishment is not only unjust, but worse than useless. And the statistics of crime have always supported the claim.