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