Blackwood's Edinburgh Magazine, Volume 58, Number 358, August 1845

Blackwood's Edinburgh Magazine, Volume 58, Number 358, August 1845
Various

Various

Blackwood's Edinburgh Magazine, Volume 58, Number 358, August 1845

ON PUNISHMENT

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 - Amongst the anecdotes which are told in this concluding portion of the pamphlet, we were struck with the following, which affords a striking instance of that tendency to run a-muck from time to time by which some men are unhappily afflicted:—"One of them, at length, showed strong indications of approaching insanity. He became moody, and twice attempted to destroy himself. I thought that possibly change of occupation and diet might benefit him; and I brought him to my own garden in consequence, and sought to feed him up. But he rather got worse. I remonstrated with him; and his answer was a striking one—'When I used to be in this way before, I could get into trouble, (commit an offence, and incur a severe punishment,) and that took it out of me; but now that I try to behave myself, I think that I am going mad altogether.'"]

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 à 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?

REFERENCES

Zschokke's Aehrenlese.—Part I. Pandora, Civilization, Demoralization, and Death-punishment.

On the Management of Transported Criminals. By Captain Maconochie, R.N., K.H., late Superintendent at Norfolk Island.

General Views, &c. &c. By the Same.

PÚSHKIN, THE RUSSIAN POET

No. III